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Volume 2 covers July 14 to September 17, 1787. The records of the Federal Convention which was held in Philadelphia between May and September 1787. The sessions were secret but the proceedings were reconstructed from notes kept by the official secretary and some participants, most notably James Madison.

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Volume II: Proceedings

SATURDAY, JULY 14, 1787.

JOURNAL Saturday July 14. 1787.

It was moved and seconded to agree to the following proposition, namely.

That to secure the liberties of the States already confederated, the number of representatives in the first branch from the States which shall hereafter be established, shall never exceed the representatives from such of the thirteen United States as shall accede to this Confederation.

On the question to agree to the proposition

it passed in the negative [Ayes — 4; noes — 5; divided — 1.]

It was moved and seconded to reconsider the two propositions reported from the grand Committee, and agreed by the House to stand part of the report — entered on the Journal of the 6. instant

It was moved and seconded to postpone the second clause of the report from the grand Committee, entered on the Journals of the 6 instant, in order to take up the following. namely

That the second branch of the Legislature shall have Thirty six Members of which number

New Hampshire shall have

2.

Massachusetts

4

Rhode Island

1

Connecticut

3

New York

3

New Jersey

2

Pennsylvania

4

Delaware

1

Maryland

3

Virginia

5

No Carolina

3

So Carolina

3

Georgia

2.

On the question to postpone, it passed in the negative. [Ayes — 4; noes — 6.]1

and then the House adjourned till Monday

DETAIL OF AYES AND NOES

New Hampshire

Massachusetts

Rhode Island

Connecticut

New York

New Jersey

Pennsylvania

Delaware

Maryland

Virginia

North Carolina

South Carolina

Georgia

Questions

Ayes

Noes

Divided

[154]

aye

aye

no

dd

aye

aye

no

no

no

no

That the number of representatives in ye first branch from the States hereafter to be established shall not exceed the representatives from the States already confederated

4

5

1

[155]

no

no

no

aye

no

aye

aye

no

aye

no

To postpone the 2d clause of the report from the grand Committee of the 6. instant in order to take up the substitute offd by Mr Pinckney

4

6

MADISON Saturday. July 14. in Convention

Mr. L. Martin called for the question on the whole report, including the parts relating to the origination of money bills, and the equality of votes in the 2d. branch.

Mr. Gerry. wished before the question should be put, that the attention of the House might be turned to the dangers apprehended from Western States. He was for admitting them Edition: current; Page: [3] on liberal terms, but not for putting ourselves into their hands. They will if they acquire power like all men, abuse it. They will oppress commerce, and drain our wealth into the Western Country. To guard agst. these consequences, he thought it necessary to limit the number of new States to be admitted into the Union, in such a manner, that they should never be able to outnumber the Atlantic States.2 He accordingly moved “that in order to secure the 〈liberties of the〉 States already confederated, the 〈number of〉 Representatives in the 1st. branch 〈of the States which shall hereafter be established〉 shall never exceed in number, the Representatives from such of the States 〈as shall accede to this confederation.〉3

Mr. King. seconded the motion.

Mr. Sherman, thought there was no probability that the number of future States would exceed that of the Existing States. If the event should ever happen, it was too remote to be taken into consideration at this time. Besides We are providing for our posterity, for our children & our grand Children, who would be as likely to be citizens of new Western States, as of the old States. On this consideration alone, we ought to make no such discrimination as was proposed by the motion.

Mr. Gerry. If some of our children should remove, others will stay behind, and he thought it incumbent on us to provide for their interests. There was a rage for emigration from the Eastern States to the Western Country and he did not wish those remaining behind to be at the mercy of the Emigrants. Besides foreigners are resorting to that Country, and it is uncertain what turn things may take there. — On the question for agreeing to the Motion of Mr. Gerry, 〈it passed in the negative.〉

Mr. Rutlidge proposed to reconsider the 〈two propositions touching the originating of〉 money bills 〈in the first〉 & the equality of votes in the second branch.

Edition: current; Page: [4]

Mr. Sherman was for the question on the whole at once. It was he said a conciliatory plan, it had been considered in all its parts, a great deal of time had been spent on it, and if any part should now be altered, it would be necessary to go over the whole ground again.

Mr. L. Martin urged the question on the whole. He did not like many parts of it. He did not like having two branches, nor the inequality of votes in the 1st. branch. He was willing however to make trial of the plan, rather than do nothing.4

Mr. Wilson traced the progress of the Report through its several stages, remarking yt when on the question concerning an equality of votes, the House was divided, our Constituents had they voted as their representatives did, would have stood as ⅔ agst. the equality, and ⅓ only in favor of it. This fact would ere long be known, and it will appear that this fundamental point has been carried by ⅓ agst. ⅔. What hopes will our Constituents entertain when they find that the essential principles of justice have been violated in the outset of the Governmt. As to the privilege of originating money bills, it was not considered by any as of much moment, and by many as improper in itself. He hoped both clauses wd. be reconsidered. The equality of votes was a point of such critical importance, that every opportunity ought to be allowed, for discussing and collecting the mind of the Convention on it.

Mr. L. Martin denies that there were ⅔ agst. the equality of votes. The States that please to call themselves large, are the weekest in the Union. Look at Masts. Look at Virga. Are they efficient States? He was for letting a separation take place if they desired it. He had rather there should be two Confederacies, than one founded on any other principle than an equality of votes in the 2d branch at least.

Mr Wilson was not surprised that those who say that a minority does more than the majority should say that that minority is stronger than the majority. He supposed the next assertion will be that they are richer also, though he hardly Edition: current; Page: [5] expected it would be persisted in when the States shall be called on for taxes & troops —

Mr. Gerry also animadverted on Mr. L. Martins remarks on the weakness of Masts. He favored the reconsideration with a view not of destroying the equality of votes; but of providing that the States should vote per capita. which he said would prevent the delays & inconveniences that had been experienced in Congs. and would give a national aspect & Spirit to the management of business. He did not approve of a reconsideration of the clause relating to money bills. It was of great consequence. It was the corner stone of the accomodation. If any member of the Convention had the exclusive privilege of making propositions, would any one say that it would give him no advantage over other members. The Report was not altogether to his mind. But he would agree to it as it stood rather than throw it out altogether.

Mr. Dayton. The smaller States can never give up their equality. For himself he would in no event yield that security for their rights.

Mr. Sherman urged the equality of votes not so much as a security for the small States; as for the State Govts. which could not be preserved unless they were represented & had a negative in the Genl. Government. He had no objection to the members in the 2d b. voting per capita, as had been suggested by (Mr. Gerry)

Mr. Gerry said he should like the motion, but could see no hope of success. An accomodation must take place, and Edition: current; Page: [6] it was apparent from what had been seen that it could not do so on the ground of the motion. He was utterly against a partial confederacy, leaving other States to accede or not accede; as had been intimated.

Mr. King said it was always with regret that he differed from his colleagues, but it was his duty to differ from (Mr Gerry) on this occasion. He considered the proposed Government as substantially and formally, a General and National Government over the people of America. There never will be a case in which it will act as a federal Government on the States and not on the individual Citizens. And is it not a clear principle that in a free Govt. those who are to be the objects of a Govt. ought to influence the operations of it? What reason can be assigned why the same rule of representation sd. not prevail in the 2d. branch as in the 1st.? He could conceive none. On the contrary, every view of the subject that presented itself, seemed to require it. Two objections had been raised agst. it, drawn 1. from the terms of the existing compact. 2. from a supposed danger to the smaller States. — As to the first objection he thought it inapplicable. According to the existing confederation, the rule by which the public burdens is to be apportioned is fixed, and must be pursued. In the proposed Govermt. it cannot be fixed, because indirect taxation is to be substituted. The Legislature therefore will have full discretion to impose taxes in such modes & proportions as they may judge expedient. As to the 2d. objection, he thought it of as little weight. The Genl. Governt. can never wish to intrude on the State Governts. There could be no temptation. None had been pointed out. In order to prevent the interference of measures which seemed most likely to happen, he would have no objection to throwing all the State debts into the federal debt, making one aggregate debt of about 70,000,000, of dollars, and leaving it to be discharged by the Genl. Govt. — According to the idea of securing the State Govts. there ought to be three distinct legislative branches. The 2d. was admitted to be necessary, and was actually meant, to check the 1st. branch, to give more wisdom, system, & stability to the Govt. and ought Edition: current; Page: [7] clearly as it was to operate on the people to be proportioned to them. For the third purpose of securing the States, there ought then to be a 3d. branch, representing the States as such and guarding by equal votes their rights & dignities. He would not pretend to be as thoroughly acquainted with his immediate Constituents as his colleagues, but it was his firm belief that Masts. would never be prevailed on to yield to an equality of votes. In N. York (he was sorry to be obliged to say any thing relative to that State in the absence of its representatives, but the occasion required it), in N. York he had seen that the most powerful argument used by the considerate opponents to the grant of the Impost to Congress, was pointed agst. the viccious constitution of Congs. with regard to representation & suffrage. He was sure that no Govt. could last that was not founded on just principles. He preferred the doing of nothing, to an allowance of an equal vote to all the States. It would be better he thought to submit to a little more confusion & convulsion, than to submit to such an evil. It was difficult to say what the views of different Gentlemen might be. Perhaps there might be some who thought no Governmt. co-extensive with the U. States could be established with a hope of its answering the purpose. Perhaps there might be other fixed opinions incompatible with the object we were pursuing. If there were, he thought it but candid that Gentlemen would speak out that we might understand one another.

Mr. Strong. The Convention had been much divided in opinion. In order to avoid the consequences of it, an accomodation had been proposed. A Committee had been appointed; and though some of the members of it were averse to an equality of votes, a Report has been made in favor of it. It is agreed on all hands that Congress are nearly at an end. If no Accommodation takes place, the Union itself must soon be dissolved. It has been suggested that if 〈we〉 can not come to any general agreement the principal States may form & recommend a scheme of Government. But will the small States in that case ever accede it. Is it probable that the large States themselves will under such circumstances embrace Edition: current; Page: [8] and ratify it. He thought the small States had made a considerable concession in the article of money bills, and that 〈they〉 might naturally expect some concessions on the other side. From this view of the matter he was compelled to give his vote for the Report taken all together.

Mr 〈Madison〉 expressed his apprehensions that if the proper foundation of Governmt was destroyed, by substituting an equality in place of a proportional Representation, no 〈proper〉 superstructure would be raised.6 If the small States really wish for a Government armed with the powers necessary to secure their liberties, and to enforce obedience on the larger members as well as on themselves he could not help thinking them extremely mistaken in their means. He reminded them of the consequences of laying the existing confederation on improper principles. All the principal parties to its compilation, joined immediately in mutilating & fettering the Governmt. in such a manner that it has disappointed every hope placed on it. He appealed to the doctrine & arguments used by themselves on 〈a former occasion.〉 It had been very properly observed by 〈Mr. Patterson〉 that Representation was an expedient by which the meeting of the people themselves was rendered unnecessary; and that the representatives ought therefore to bear a proportion to the votes which their constituents if convened, would respectively have. Was not this remark as applicable to one branch of the Representation as to the other? But it had been said that the Governt. would 〈in its operation〉 be partly federal, partly national; that altho’ in the latter respect the Representatives of the people ought to be in proportion to the people: yet in the former it ought to be according to the number of States. If there was any 〈solidity〉7 in this distinction he was ready to abide by it, if there was none it ought to be abandoned. In all cases where the Genl. Governt. is to act on the people, let the people be represented and the votes be proportional. In all cases where the Governt. is to act on the States as such, in like manner as Congs. now act Edition: current; Page: [9] on them, let the States be represented & the votes be equal. This was the true ground of compromise if there was any ground at all. But he denied that there was any ground. He called for a single instance in which the Genl. Govt. was not to operate on the people individually. The practicability of making laws, with coercive sanctions, for the States as political bodies, had been exploded on all hands. He observed that the people of the large States would in some way or other secure to themselves a weight proportioned to the importance accruing from their superior numbers. If they could not effect it by a proportional representation in the Govt. they would probably accede to no Govt. which did not in great measure depend for its efficacy on their voluntary cooperation; in which case they would indirectly secure their object. The existing confederacy proved that where the acts of the Genl. Govt. were to be executed by the particular Govts the latter had a weight in proportion to their importance No one would say that either in Congs. or out of Congs. Delaware had equal weight with Pensylva. If the latter was to supply ten times as much money as the former, and no compulsion could be used, it was of ten times more importance, that she should furnish voluntarily the supply.8 In the Dutch Confederacy the votes of the Provinces were equal. But Holland, which supplies about half the money, governed the whole republic. He enumerated the objections agst an equality of votes in the 2d. branch, notwithstanding the proportional representation in the first. 1. the minority could negative the will of the majority of the people. 2. they could extort measures by making them a condition of their assent to other necessary measures. 3. they could obtrude measures on the majority by virtue of the peculiar powers which would be vested in the Senate. 4. the evil instead of being cured by time, would increase with every new State that should be admitted, as they must all be admitted on the principle of equality. 5. the perpetuity it would give to the 〈preponderance of the〉 Northn. agst. the Southn. Scale was a serious consideration. It Edition: current; Page: [10] seemed now to be pretty well understood that the real difference of interests lay, not between the large & small but between the N. & Southn. States. The institution of slavery & its consequences formed the line of discrimination. There were 5 States on the South, 8 on the Northn. side of this line. Should a proportl. representation take place it was true, the N. side would still outnumber the other: but not in the same degree, at this time; and every day would tend towards an equilibrium.

Mr. Wilson would add a few words only. If equality in the 2d. branch was an error that time would correct, he should be less anxious to exclude it being sensible that perfection was unattainable in any plan: but being a fundamental and a perpetual error, it ought by all means to be avoided. A vice in the Representation, like an error in the first concoction, must be followed by disease, convulsions, and finally death itself. The justice of the general principle of proportional representation has not in argument at least been yet contradicted. But it is said that a departure from it so far as to give the States an equal vote in one branch of the Legislature is essentail to their preservation. He had considered this position maturely, but could not see its application. That the States ought to be preserved he admitted. But does it follow that an equality of votes is necessary for the purpose? Is there any reason to suppose that if their preservation should depend more on the large than on the small States, the security of the States agst. the Genl. Government would be diminished? Are the large States less attached to their existence, more likely to commit suicide, than the small? An equal vote then is not necessary as far as he can conceive: and is liable, among other objections to this insuperable one: The great fault of the existing Confederacy is its inactivity. It has never been a complaint agst. Congs. that they governed overmuch. The complaint has been that they have governed too little. To remedy this defect we were sent here. Shall we effect the cure by establishing an equality of votes, as is proposed? no; this very equality carries us directly to Congress: to the system which it is our duty to rectify. The small States cannot indeed act, by virtue of this equality, but they may controul Edition: current; Page: [11] the Govt. as they have done in Congs. This very measure is here prosecuted by a minority of the people of America. Is then the object of the Convention likely to be accomplished in this way? Will not our Constituents say? we sent you to form an efficient Govt and you have given us one more complex indeed, but having all the weakness of the former Governt. He was anxious for uniting all the States under one Governt. He knew there were some respectable men who preferred three confederacies, united by offensive & defensive alliances. Many things may be plausibly said, some things may be justly said, in favor of such a project. He could not however concur in it himself; but he thought nothing so pernicious as bad first principles.

Mr. Elseworth asked two questions one of Mr. Wilson, whether he had ever seen a good measure fail in Congs. for want of a majority of States in its favor? He had himself never known such an instance: the other of Mr. 〈Madison〉 whether a negative lodged with a majority of the States even the smallest, could be more dangerous than the qualified negative proposed to be lodged in a single Executive Magistrate, who must be taken from some one State?

Mr. Sherman, signified that his expectation was that the Genl. Legislature would in some cases act on the federal principle, of requiring quotas. But he thought it ought to be empowered to carry their own plans into execution, if the States should fail to supply their respective quotas.

On the question for agreeing to Mr Pinkney’s motion for allowing N. H. 2. Mas. 4. &c — 〈it passed in the negative〉

KING Memorandum
July 15. 87

About twelve days since the convention appointed a Grand Comee. consisting of Gerry, Elsworth, Yates, Patterson, Franklin, Bedford, Martin, Mason, Davie, Rutledge & Baldwin to adjust the Representation in the two Brs. of the Legislature of the US — They reported yt. every 40,000 Inhabs. taken agreeably to the Resolution of Cong. of ye. 18 Ap. 1783 shd. send one member to the first Br of the Legislatr. yt. this Br. shd. originate exclusively money Bills, & also originate ye. appropriations of money — and that in ye Senate or upper Br. each state shd. have one vote & no more — the Representation as to the first Br. was twice recommitted altho not to the same committee, finally it was agreed yt. Taxation of the direct sort & Representation shd. be in direct proportion with each other — that the first Br. shd. consist of 65 memb: viz. N H. 3: M. 8: R I. 1: C. 5: NY. 6: N J. 4: P. 8: D. 1: M. 6: V. 10: NC. 5: SC. 5: G. 3: and that the origination of money Bills and the Appropriations of money shd. belong in the first instance to yt. Br. but yt. in the Senate or 2d. Br. each State shd. have an equal Vote — in this situation of the Report it was moved by S. Car. that in the formation of the 2d. Br. instead of an equality of Votes among the States, that N H shd. have 2: M. 4: R I. 1: C. 3. N Y 3. N J. 2. P 4. D 1. M 3. V 5. N C. 3. S C. 3 G 2. Total 36 —

on the question to agree to this apportionment, instead of the equality (Mr. Gorham being absent) Mass. Con. N Jer. Del. N Car & Georg. No —

Penn. Mar. Virg. & S Car. Ay —

This Question was taken and to my mortification by the Vote of Mass lost on the 14th. July —9

Edition: current; Page: [13]

MONDAY, JULY 16, 1787.

JOURNAL Monday July 16. 1787.

The question being taken on the whole of the report from the grand Committee as amended

it passed in the affirmative [Ayes — 5; noes — 4; divided — 1.] and is as follows, namely,

Resolved — That in the original formation of the Legislature of the United States the first Branch thereof shall consist of Sixty five members — of which number

New Hampshire shall send

Three

Massachusetts

Eight

Rhode Island

One

Connecticut

Five

New York

Six

New Jersey

four

Pennsylvania

Eight

Delaware

One

Maryland

Six

Virginia

Ten

North Carolina

Five

South Carolina

Five

Georgia

Three.

But as the present situation of the States may probably alter in the number of their inhabitants the Legislature of the United States shall be authorized from time to time to apportion the number of representatives: and in case any of the States shall hereafter be divided, or enlarged by addition of territory, or any two or more States united, or any New States created within the limits of the United States the Legislature of the United States shall possess authority to regulate the Edition: current; Page: [14] number of representatives: in any of the foregoing cases upon the principle of their number of inhabitants, according to the provisions hereafter mentioned, namely,

Provided always that representation ought to be proportioned according to direct Taxation; and in order to ascertain the alteration in the direct Taxation, which may be required from time to time by the changes in the relative circumstances of the States — Resolved that a Census be taken within six years from the first Meeting of the Legislature of the United States, and once within the term of every Ten years afterwards of all the inhabitants of the United States in the manner and according to the ratio recommended by Congress in their resolution of April 18. 1783 — and that the Legislature of the United States shall proportion the direct Taxation accordingly.

Resolved That all Bills for raising or appropriating money, and for fixing the salaries of the Officers of the Government of the United States shall originate in the first Branch of the Legislature of the United States, and shall not be altered or amended by the second Branch — and that no money shall be drawn from the Public Treasury but in pursuance of appropriations to be originated by the first Branch.

Resolved That in the second Branch of the Legislature of the United States each State shall have an equal vote.

It was moved and seconded to agree to the first clause of the sixth resolution reported from the Committee of the whole House namely

“That the national Legislature ought to possess the legislative rights vested in Congress by the confederation”

which passed unanimously in the affirmative

It was moved and seconded to commit the second clause of the Sixth resolution reported from the Committee of the whole House

“Resolved that in the original formation of the Legislature of the U.S. the first branch thereof shall consist of sixty-five members, of which number N. Hampshire shall send 3. Massts. 8. Rh. I. 1. Connt. 5. N. Y. 6. N. J. 4. Pena. 8. Del. 1. Maryd. 6. Virga. 10. N. C. 5. S. C. 5. Geo. 3. — But as the present situation of the States may probably alter in the number of their inhabitants, the Legislature of the U. S. shall be authorized Edition: current; Page: [16] from time to time to apportion the number of Reps.; and in case any of the States shall hereafter be divided, or enlarged by, addition of territory, or any two or more States united, or any new States created within the limits of the U. S. the Legislature of the U. S. shall possess authority to regulate the number of Reps, in any of the foregoing cases, upon the principle of their number of inhabitants, according to the provisions hereafter mentioned, namely — provided always that representation ought to be proportioned according to direct taxation; and in order to ascertain the alteration in the direct taxation, which may be required from time to time by the changes in the relative circumstances of the States P Resolved that a Census be taken within six years from the 1st. meeting of the Legislature of the U. S. and once within the term of every 10 years afterwards of all the inhabitants of the U. S. in the manner and according to the ratio recommended by Congress in their Resolution of April 18. 1783. and that the Legislature of the U. S. shall proportion the direct taxation accordingly P Resolved, that all bills for raising or appropriating money, and for fixing the salaries of officers of the Govt. of the U. S. shall originate in the first branch of the Legislature of the U. S. and shall not be altered or amended in 2d. branch: and that no money shall be drawn from the public Treasury, but in pursuance of appropriations to be originated in the 1st — branch. P Resolvd. that in the 2d. branch of the Legislature of the U. S. each State shall have an equal vote”〉4

The 6th. Resol: in the Report from the Come. of the whole House, which had been postponed in order to consider the 7 & 8th. Resol’ns; was now resumed. see the Resoln:

〈The next〉 “And moreover to legislate in all cases to which the separate States are incompetent; or in which the harmony of the U. S. may be interrupted by the exercise of individual legislation,” 〈being〉 read for a question

Mr. Butler calls for some explanation of the extent of this power; particularly of the word incompetent. The vagueness of the terms rendered it impossible for any precise judgment to be formed.

Mr. Ghorum. The vagueness of the terms constitutes the propriety of them. We are now establishing general principles, to be extended hereafter into details which will be precise & explicit.

Mr. Rutlidge, urged the objection started by Mr. Butler and moved that the clause should be committed to the end that a specification of the powers comprised in the general terms, might be reported.

Mr. Randolph. The vote of this morning (involving an equality of suffrage in 2d. branch) had embarrassed the business extremely. All the powers given in the Report from the Come. of the whole, were founded on the supposition that a Proportional representation was to prevail in both branches of the Legislature — When he came here this morning his purpose was to have offered some propositions that might if possible have united a great majority of votes, and particularly might provide agst. the danger suspected on the part of the smaller States, by enumerating the cases in which it might lie, and allowing an equality of votes in such cases.* But finding from the preceding vote that they persist in demanding Edition: current; Page: [18] an equal vote in all cases, that they have succeeded in obtaining it, and that N. York if present would probably be on the same side, he could not but think we were unprepared to discuss this subject further. It will probably be in vain to come to any final decision with a bare majority on either side For these reasons he wished the Convention might adjourn, that the large States might consider the steps proper to be taken in the present solemn crisis of the business, and that the small States might also deliberate on the means of conciliation.

Mr. Patterson, thought with Mr. R. that it was high time for the Convention to adjourn that the rule of secrecy ought to be rescinded, and that our Constituents should be consulted. No conciliation could be admissible on the part of the smaller States on any other ground than that of an equality of votes in the 2d. branch. If Mr Randolph would reduce to form his motion for an adjournment sine die, he would second it with all his heart.

Genl. Pinkney wished to know of Mr R. whether he meant an adjournment sine die, or only an adjournment for the day. If the former was meant, it differed much from his idea He could not think of going to S. Carolina, and returning again to this place. Besides it was chimerical to suppose that the States if consulted would ever accord separately, and beforehand.

Mr. Randolph, had never entertained an idea of an adjournment sine die; & was sorry that his meaning had been so readily & strangely misinterpreted. He had in view merely an adjournment till tomorrow in order that some conciliatory experiment might if possible be devised, and that in case the smaller States should continue to hold back, the larger might then take such measures, he would not say what, as might be necessary.

Mr. Patterson seconded the adjournment till tomorrow, as an opportunity seemed to be wished by the larger States to deliberate further on conciliatory expedients.

On the question for adjourning till tomorrow, 〈the States were equally divided.〉

Mr. Broome thought it his duty to declare his opinion agst. an adjournment sine die, as had been urged by Mr. Patterson. Such a measure he thought would be fatal. Something must be done by the Convention tho’ it should be by a bare majority.

Mr. Gerry observed that Masts. was opposed to an adjournment, because they saw no new ground of compromise. But as it seemed to be the opinion of so many States that a trial shd be made, the State would now concur in the adjournmt.

Mr. Rutlidge could see no need of an adjournt. because he could see no chance of a compromise. The little States were fixt. They had repeatedly & solemnly declared themselves to be so. All that the large States then had to do, was to decide whether they would yield or not. For his part he conceived that altho’ we could not do what we thought best, in itself, we ought to do something. Had we not better keep the Govt. up a little longer, hoping that another Convention will supply our omissions, than abandon every thing to hazard. Our Constituents will be very little satisfied with us if we take the latter course.

On the morning following before the hour of the Convention a number of the members from the larger States, by common agreement met for the purpose of consulting on the proper steps to be taken in consequence of the vote in favor of an equal Representation in the 2d. branch, and the apparent inflexibility of the smaller States on that point — Several members from the latter States also attended. The time was Edition: current; Page: [20] wasted in vague conversation on the subject, without any specific proposition or agreement. It appeared indeed that the opinions of the members who disliked the equality of votes differed so much as to the importance of that point, and as to the policy of risking 〈a failure of〉 a〈ny〉 general act of the Convention by inflexibly opposing it. Several of them supposing that no good Governnt could or would be built on that foundation, and that as a division of the Convention into two opinions was unavoidable it would be better that the side comprising the principal States, and a majority of the people of America, should propose a scheme of Govt. to the States, than that a scheme should be proposed on the other side, would have concurred in a firm opposition to the smaller States, and in a separate recommendation, if eventually necessary. Others seemed inclined to yield to the smaller States, and to concur in such an Act however imperfect & exceptionable, as might be agreed on by the Convention as a body, tho’ decided by a bare majority of States and by a minority of the people of the U. States. It is probable that the result of this consultation satisfied the smaller States that they had nothing to apprehend from a Union of the larger, in any plan whatever agst. the equality of votes in the 2d. branch.8

Edition: current; Page: [21]

TUESDAY, JULY 17, 1787.

JOURNAL Tuesday July 17. 1787.

It was moved and seconded to postpone the considn of the second clause of the Sixth resolution reported from the Committee of the whole House in order to take up the following

“To make laws binding on the People of the United States in all cases which may concern the common interests of the Union: but not to interfere with the government of the individual States in any matters of internal police which respect the government of such States only, and wherein the general welfare of the United States is not concerned.”

It was moved and seconded to alter the second clause of the 6th esolution so as to read as follows, namely

“and moreover to legislate in all cases for the general interests of the Union, and also in those to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation

[To agree to the second clause of the 6. resolution as amended. Ayes — 8; noes — 2.]3

On the question to agree to the following clause of the sixth resolution reported from the Committee of the whole House, namely,

“to negative all laws passed by the several States contravening in the opinion of the national legislature, the articles Edition: current; Page: [22] of union, or any treaties subsisting under the authority of the Union”

it passed in the negative [Ayes — 3; noes — 7.]

It was moved and seconded to agree to the following resolution namely.

Resolved that the legislative acts of the United States made by virtue and in pursuance of the articles of Union and all Treaties made and ratified under the authority of the United States shall be the supreme law of the respective States as far as those acts or Treaties shall relate to the said States, or their Citizens and Inhabitants — and that the Judiciaries of the several States shall be bound thereby in their decisions, any thing in the respective laws of the individual States to the contrary notwithstanding

which passed unanimously in the affirmative

On the question to agree to the first clause of the 9th resolution reported from the Committee of the whole House namely “That a national Executive be instituted to consist of a Single Person”

it passed unanimously in the affirmative [Ayes — 10; noes — 0.]

It was moved and seconded to strike the words

“national legislature” out of the second clause of the 9th resolution, reported from the Committee of the whole House and to insert the words

“the Citizens of the United States”

which passed in the negative [Ayes — 1; noes — 9.]

It was moved and seconded to alter the second clause of the 9th resolution reported from the Committee of the whole House so as to read

“To be chosen by Electors to be appointed by the several Legislatures of the individual States”

which passed in the negative [Ayes — 2; noes — 8.]

It was moved and seconded to agree to the following clause namely

“to be chosen by the national Legislature

which passed unan: in the affirmative. [Ayes — 10; noes — 0.]

Edition: current; Page: [23]

It was moved and seconded to postpone the consideration of the following clause

for the term of seven years”

which was unanimously agreed to

On the question to agree to the following clause namely

“with power to carry into effect the national laws”

it passed unanimously in ye affirmative

On the question to agree to the following clause namely

“to appoint to offices in cases not otherwise provided for”

it passed unanimously in the affirmative

It was moved and seconded to strike out the following words namely

“to be ineligible a second time”

which passed in the affirmative [Ayes — 6; noes — 4.]

It was moved and seconded to strike out the words “seven years” and to insert the words “good behaviour.”

To postpone the 2 clause of ye 6th resolution, to take up a motion offered by Mr Sherman

2

8

[161]

aye

no

aye

aye

aye

aye

no

aye

no

no

To agree to the amendment offered to the 6th resolution by Mr Bedford

6

4

[Beginning sixth loose sheet]

[162]

aye

aye

aye

aye

aye

aye

aye

aye

no

no

To agree to the second clause of the 6. resolution as amended.

8

2

[163]

aye

no

no

no

no

no

aye

aye

no

no

To agree to the last clause of the 6 resolution as reported from the Committee of the whole House.

3

7

[164]

aye

aye

aye

aye

aye

aye

aye

aye

aye

aye

The National Executive to consist of a Single Person unanimous

10

[165]

no

no

no

aye

no

no

no

no

no

no

That the National Executive be chosen by the Citizens of the United States.

1

9

[166]

no

no

no

no

aye

aye

no

no

no

no

That the national Executive be chosen by Electors to be appointed by the individual Legislatures

2

8

[167]

aye

aye

aye

aye

aye

aye

aye

aye

aye

aye

That the national Executive be chosen by the Legislature of the United States

10

[168]

aye

aye

aye

aye

no

aye

no

no

no

aye

To strike out the words “to be ineligible a second time”

6

4

[169]

no

no

aye

aye

aye

no

aye

no

no

no

To strike out the words “seven years” and insert the words “good behaviour”

4

6

[170]

aye

no

no

aye

aye

no

no

aye

no

no

To strike out the words “seven years”

4

6

Edition: current; Page: [25]

MADISON Tuesday July 17. in Convention

Mr. Governr. Morris moved to reconsider the whole Resolution agreed to yesterday concerning the constitution of the 2 branches of the Legislature. His object was to bring the House to a consideration in the abstract of the powers necessary to be vested in the general Government. It had been said, Let us know how the Govt. is to be modelled, and then we can determine what powers can be properly given to it. He thought the most eligible course was, first to determine on the necessary powers, and then so to modify the Governt. as that it might be justly & properly enabled to administer them. He feared if we proceded to a consideration of the powers, whilst the vote of yesterday including an equality of the States in the 2d. branch, remained in force, a reference to it, either mental or expressed, would mix itself with the merits of every question concerning the powers. — this motion was not seconded. (It was probably approved by several members, who either despaired of success, or were apprehensive that the attempt would inflame the jealousies of the smaller States.)

The 6th. Resoln. in the Report of the Come. of the whole relating to the powers, which had been postponed in order to consider the 7 & 8th. relating to the Constitution of the, Natl. Legislature, was now resumed —

Mr. Sherman observed that it would be difficult to draw the line between the powers of the Genl. Legislatures, and those to be left with the States; that he did not like the definition contained in the Resolution, and proposed in place of the words “of individual legislation” line 4 inclusive, to insert “to make laws binding on the people of the 〈United〉 States in all cases 〈which may concern the common interests of the Union〉; but not to interfere with 〈the Government of the individual States in any matters of internal police which respect the Govt. of such States only, and wherein the General〉 welfare of the U. States is not concerned.”5

Edition: current; Page: [26]

Mr. Wilson 2ded. the amendment as better expressing the general principle.

Mr Govr Morris opposed it. The internal police, as it would be called & understood by the States ought to be infringed in many cases, as in the case of paper money & other tricks by which Citizens of other States may be affected.

Mr. Sherman, in explanation of his ideas read an enumeration of powers, including the power of levying taxes on trade, but not the power of direct taxation.

Mr. Govr. Morris remarked the omission, and inferred that for the deficencies of taxes on consumption, it must have been the meaning of Mr. Sherman, that the Genl. Govt. should recur to quotas & requisitions, which are subversive of the idea of Govt.

Mr. Sherman acknowledged that his enumeration did not include direct taxation. Some provision he supposed must be made for supplying the deficiency of other taxation, but he had not formed any.6

Mr. Bedford moved that the 〈2d. member of Resolution 6.〉 be so altered as to read “〈and moreover〉 to legislate in all cases for the general interests of the Union, and also in those to which the States are separately incompetent,” 〈or in which the harmony of the U. States may be interrupted by the exercise of individual Legislation”.〉8

Mr. Govr. Morris 2ds. 〈the motion.〉

Mr. Randolph. This is a formidable idea indeed. It involves the power of violating all the laws and constitutions of the States, and of intermeddling with their police. The last member of the sentence is 〈also〉 superfluous, being included in the first.

Edition: current; Page: [27]

Mr. Bedford. It is not more extensive or formidable than the clause as it stands: no State being separately competent to legislate for the general interest of the Union.

On question for agreeing to Mr. Bedford’s motion. 〈it passed in the affirmative.〉

〈The next. —〉 “To negative all laws passed by the several States 〈contravening in the opinion of the Nat: Legislature the articles of Union, or any treaties subsisting under the authority of ye Union”〉9

Mr. Govr. Morris opposed this power as likely to be terrible to the States, and not necessary, if sufficient Legislative authority should be given to the Genl. Government.

Mr. Sherman thought it unnecessary, as the Courts of the States would not consider as valid any law contravening the Authority of the Union, and which the legislature would wish to be negatived.

Mr. L. Martin considered the power as improper & inadmissable. Shall all the laws of the States be sent up to the Genl. Legislature before they shall be permitted to operate?

Mr. 〈Madison,〉 considered the negative on the laws of the States as essential to the efficacy & security of the Genl. Govt. The necessity of a general Govt. proceeds from the propensity of the States to pursue their particular interests in opposition to the general interest. This propensity will continue to disturb the system, unless effectually controuled. Nothing short of a negative, on their laws will controul it. They can pass laws which will accomplish their injurious objects before they can be repealed by the Genl Legislre. or be set aside by the National Tribunals. Confidence can 〈not〉 be put in the State Tribunals as guardians of the National authority and interests. In all the States these are more or less Edition: current; Page: [28] dependt. on the Legislatures. In Georgia10 they are appointed annually by the Legislature. In R. Island the Judges who refused to execute an unconstitutional law were displaced, and others substituted, by the Legislature who would be willing instruments of the wicked & arbitrary plans of their masters. A power of negativing the improper laws of the States is at once the most mild & certain means of preserving the harmony of the system. Its utility is sufficiently displayed in the British System. Nothing could maintain the harmony & subordination of the various parts of the empire, but the prerogative by which the Crown, stifles in the birth every Act of every part tending to discord or encroachment. It is true the prerogative is sometines misapplied thro’ ignorance or a partiality to one particular part of ye. empire: but we have not the same reason to fear such misapplications in our System. As to the sending all laws up to the Natl. Legisl: that might be rendered unnecessary by some emanation of the power into the States, so far at least, as to give a temporary effect to laws of immediate necessity.

Mr. Govr. Morris was more & more opposed to the negative. The proposal of it would disgust all the States. A law that ought to be negatived will be set aside in the Judiciary department. and if that security should fail; may be repealed by a National. law.

Mr. Sherman. Such a power involves a wrong principle, to wit, that a law of a State contrary to the articles of the Union, would if not negatived, be valid & operative.

Mr. Pinkney urged the necessity of the Negative.

On the question for agreeing to the power of negativing laws of States &c.” 〈it passed in the negative.〉

〈Mr. Luther Martin moved the following resolution “that the Legislative acts of the U. S. made by virtue & in pursuance of the articles of Union, and all treaties made & ratified under the authority of the U. S. shall be the supreme law of Edition: current; Page: [29] the respective States, as far as those acts or treaties shall relate to the said States, or their Citizens and inhabitants — & that the Judiciaries of the several States shall be bound thereby in their decisions, any thing in the respective laws of the individual States to the contrary notwithstanding” which was agreed to nem: con:.〉12

Mr. Governr. Morris was pointedly agst. his being so chosen. He will be the mere creature of the Legisl: if appointed & impeachable by that body. He ought to be elected by the people at large, by the freeholders of the Country. That difficulties attend this mode, he admits. But they have been found superable in N. Y. &. in Cont. and would he believed be found so, in the case of an Executive for the U. States. If the people should elect, they will never fail to prefer some man of distinguished character, or services; some man, if he might so speak, of continental reputation. If the Legislature elect, it will be the work of intrigue, of cabal, and of faction: it will be like the election of a pope by a conclave of cardinals; real merit will rarely be the title to the appointment. 〈He moved to strike out “National Legislature” & insert “citizens of U. S”〉

Mr. Sherman thought that the sense of the Nation would be better expressed by the Legislature, than by the people at large. The latter will never be sufficiently informed of characters, and besides will never give a majority of votes to any one man. They will generally vote for some man in their own State, and the largest State will have the best chance for the appointment. If the choice be made by the Legislre. A majority of voices may be made necessary to constitute an election.

Mr. Wilson. two arguments have been urged agst. an Edition: current; Page: [30] election of the Executive Magistrate by the people. 1 the example of Poland where an Election of the supreme Magistrate is attended with the most dangerous commotions. The cases he observed were totally dissimilar. The Polish nobles have resources & dependents which enable them to appear in force, and to threaten the Republic as well as each other. In the next place the electors all assemble in one place: which would not be the case with us. The 2d. argt. is that a majority of the people would never concur. It might be answered that the concurrence of a majority of people is not a necessary principle of election, nor required as such in any of the States. But allowing the objection all its force, it may be obviated by the expedient used in Masts. where the Legislature by majority of voices, decide in case a majority of people do not concur in favor of one of the candidates. This would restrain the choice to a good nomination at least, and prevent in a great degree intrigue & cabal. A particular objection with him agst. an absolute election by the Legislre. was that the Exec: in that case would be too dependent to stand the mediator between the intrigues & sinister views of the Representatives and the general liberties & interests of the people.

Mr. Pinkney did not expect this question would again have been brought forward; An Election by the people being liable to the most obvious & striking objections. They will be led by a few active & designing men. The most populous States by combining in favor of the same individual will be able to carry their points. The Natl. Legislature being most immediately interested in the laws made by themselves, will be most attentive to the choice of a fit man to carry them properly into execution.

Mr. Govr. Morris. It is said that in case of an election by the people the populous States will combine & elect whom they please. Just the reverse. The people of such States cannot combine. If their be any combination it must be among their representatives in the Legislature. It is said the people will be led by a few designing men. This might happen in a small district. It can never happen throughout the continent. In the election of a Govr. of N. York, it sometimes Edition: current; Page: [31] is the case in particular spots, that the activity & intrigues of little partizans are successful, but the general voice of the State is never influenced by such artifices. It is said the multitude will be uninformed. It is true they would be uninformed of what passed in the Legislative Conclave, if the election were to be made there; but they will not be uninformed of those great & illustrious characters which have merited their esteem & confidence. If the Executive be chosen by the Natl. Legislature, he will not be independent on it; and if not independent, usurpation & tyranny on the part of the Legislature will be the consequence. This was the case in England in the last Century. It has been the case in Holland, where their Senates have engrossed all power. It has been the case every where. He was surprised that an election by the people at large should ever have been likened to the polish election of the first Magistrate. An election by the Legislature will bear a real likeness to the election by the Diet of Poland. The great must be the electors in both cases, and the corruption & cabal wch are known to characterize the one would soon find their way into the other. Appointments made by numerous bodies, are always worse than those made by single responsible individuals, or by the people at large.

Col. Mason. It is curious to remark the different language held at different times. At one moment we are told that the Legislature is entitled to thorough confidence, and to indefinite power. At another, that it will be governed by intrigue & corruption, and cannot be trusted at all. But not to dwell on this inconsistency he would observe that a Government which is to last ought at least to be practicable. Would this be the case if the proposed election should be left to the people at large. He conceived it would be as unnatural to refer the choice of a proper character for chief Magistrate to the people, as it would, to refer a trial of colours to a blind man. The extent of the Country renders it impossible that the people can have the requisite capacity to judge of the respective pretensions of the Candidates. —

Mr Wilson. could not see the contrariety stated (by Col. Mason) The Legislre. might deserve confidence in some Edition: current; Page: [32] respects, and distrust in others. In acts which were to affect them & yr. Constituents precisely alike confidence was due. In others jealousy was warranted. The appointment to great offices, when the Legislre might feel many motives, not common to the public confidence was surely misplaced. This branch of business it was notorious, was most corruptly managed of any that had been committed to legislative bodies.

Mr. Williamson, conceived that there was the same difference between an election in this case, by the people and by the legislature, as between an appt. by lot, and by choice. There are at present distinguished characters, who are known perhaps to almost every man. This will not always be the case. The people will be sure to vote for some man in their own State, and the largest State will be sure to succede. This will not be Virga. however. Her slaves will have no suffrage. As the Salary of the Executive will be fixed, and he will not be eligible a 2d. time, there will not be such a dependence on the Legislature as has been imagined.

Question on an election by the people instead of the Legislature; 〈which passed in the negative.〉

“to be ineligible a second time” — Mr. Houston moved to strike out this clause.

Mr. Sherman 2ds. the motion.

Mr. Govr. Morris espoused the motion. The ineligibility proposed by the clause as it stood tended to destroy the great motive to good behavior, the hope of being rewarded by a re-appointment. It was saying to him, make hay while the sun shines.

On the question for striking out as moved by Mr. Houston, 〈it passed in the affirmative.〉

Mr. Broom was for a shorter term since the Executive Magistrate was now to be re-eligible. Had he remained ineligible a 2d. time, he should have preferred a longer term.

Docr. McClurg moved* to strike out 7 years, and insert “during good behavior”. By striking out the words declaring him not re-eligible, he was put into a situation that would keep him dependent for ever on the Legislature; and he conceived the independence of the Executive to be equally essential with that of the Judiciary department.

Mr. Govr. Morris 2ded. the motion. He expressed great pleasure in hearing it. This was the way to get a good Government. His fear that so valuable an ingredient would not be attained had led him to take the part he had done. He was indifferent how the Executive should be chosen, provided he held his place by this tenure.

Mr. Broome highly approved the motion. It obviated all his difficulties.

Mr. Sherman considered such a tenure as by no means safe or admissible. As the Executive Magistrate is now re-eligible, he will be on good behavior as far as will be necessary. Edition: current; Page: [34] If he behaves well he will be continued; if otherwise, displaced on a succeeding election.

Mr. Madison. *If it be essential to the preservation of liberty that the Legisl: Execut: & Judiciary powers be separate, it is essential to a maintenance of the separation, that they should be independent of each other. The Executive could not be independent of the Legislure, if dependent on the pleasure of that branch for a re-appointment. Why was it determined that the Judges should not hold their places by such a tenure? Because they might be tempted to cultivate the Legislature, by an undue complaisance, and thus render the Legislature the virtual expositor, as well the maker of the laws. In like manner a dependence of the Executive on the Legislature, would render it the Executor as well as the maker of laws; & then according to the observation of Montesquieu, tyrannical laws may be made that they may be executed in a tyrannical manner. There was an analogy between the Executive & Judiciary departments in several respects. The latter executed the laws in certain cases as the former did in others. The former expounded & applied them for certain purposes, as the latter did for others. The difference between them seemed to consist chiefly in two circumstances — 1. The collective interest & security were much more in the power belonging to the Executive than to the Judiciary department. 2. in the administration of the former much greater latitude is left to opinion and discretion than in the administration of the latter. But if the 2d. consideration proves that it will be more difficult to establish a rule sufficiently precise for trying the Execut: than the Judges, & forms an objection to the same tenure of office, both considerations prove that it might be more dangerous to suffer a Union between the Executive & Legisl: powers, than between the Judiciary & Legislative Edition: current; Page: [35] powers. He conceived it to be absolutely necessary to a well constituted Republic that the two first shd. be kept distinct & independent of each other. Whether the plan proposed by the motion was a proper one was another question, as it depended on the practicability of instituting a tribunal for impeachmts. as certain & as adequate in the one case as in the other. On the other hand, respect for the mover entitled his proposition to a fair hearing & discussion, until a less objectionable expedient should be applied for guarding agst. a dangerous union of the Legislative & Executive departments.

Col. Mason. This motion was made some time ago, & negatived by a very large majority. He trusted that it wd. be again negatived. It wd. be impossible to define the misbehaviour in such a manner as to subject it to a proper trial; and perhaps still more impossible to compel so high an offender holding his office by such a tenure to submit to a trial. He considered an Executive during good behavior as a softer name only for an Executive for life. And that the next would be an easy step to hereditary Monarchy. If the motion should finally succeed, he might himself live to see such a Revolution. If he did not it was probable his children or grandchildren would. He trusted there were few men in that House who wished for it. No state he was sure had so far revolted from Republican principles as to have the least bias in its favor.

Mr. Madison, was not apprehensive of being thought to favor any step towards monarchy. The real object with him was to prevent its introduction. Experience had proved a tendency in our governments to throw all power into the Legislative vortex. The Executives of the States are in general little more than Cyphers; the legislatures omnipotent. If no effectual check be devised for restraining the instability & encroachments of the latter, a revolution of some kind or other would be inevitable. The preservation of Republican Govt. therefore required some expedient for the purpose, but required evidently at the same time that in devising it, the genuine principles of that form should be kept in view.

Mr. Govr. Morris was as little a friend to monarchy as any gentleman. He concurred in the opinion that the way to Edition: current; Page: [36] keep out monarchial Govt. was to establish such a Repub. Govt. as wd. make the people happy and prevent a desire of change.

Docr. McClurg was not so much afraid of the shadow of monarchy as to be unwilling to approach it; nor so wedded to Republican Govt. as not to be sensible of the tyrannies that had been & may be exercised under that form. It was an essential object with him to make the Executive independent of the Legislature; and the only mode left for effecting it, after the vote destroying his ineligibility a second time, was to appoint him during good behavior.

On the question for inserting “during good behavior” in place of 7 years (〈with a〉 re-eligibility) 〈it passed in the negative.〉16

JOURNAL Wednesday July 18. 1787.

It was moved and seconded to postpone the consideration of the following clause in the 9th resolution reported from the Committee of the whole House namely

for the term of seven years”

which passed unanimously in ye affirmative

It was moved and seconded to postpone the consideration of the remaining clause of the 9th and the 10th resolution in order to take up the 11th resolution.

which passed in the affirmative [Ayes — 4; noes — 3; divided — 1.]

On the question to agree to the following clause of the 11th resolution namely

“That a national Judiciary be established”

it passed unanimously in the affirmative

On the question to agree to the following clause of the 11th resolution namely

“To consist of One supreme Tribunal

it passed unanimously in the affirmative

It was moved and seconded to strike out the words

“second branch of the national Legislature” and to insert the words “national executive” in the 11. resolution

which passed in the negative. [Ayes — 2; noes — 6.]

Edition: current; Page: [38]

It was moved and seconded to alter the 3rd cause of the 11th resolution so as to read as follows, namely,

The Judges of which shall be nominated and appointed by the Executive by and with the advice and consent of the second Branch of the Legislature of the United States — and every such nomination shall be made at least days prior to such appointment

which passed in the negative [Ayes — 4; noes — 4.]

It was moved and seconded to alter the 3rd clause of the 11th resolution so as to read as follows namely

That the Judges shall be nominated by the Executive and such nomination shall become an appointment if not disagreed to within days by two thirds of the second branch of the Legislature.

It was moved and seconded to postpone the consideration of the last amendment

which was unanimously agreed to

On the question to agree to the following clause of the 11th resolution namely “to hold their Offices during good behaviour”

it passed unanimously in the affirmative

On the question to agree to the following clause of the eleventh resolution namely

“to receive, punctually, at stated times a fixed compensation for their services”

it passed unanimously in the affirmative

It was moved and seconded to strike the words

“Encrease or” out of the eleventh resolution

which passed in the affirmative [Ayes — 6; noes — 2.]

On the question to agree to the clause as amended namely “to receive, punctually, at stated times, a fixed compensation for their services in which no diminution shall be made so as to affect the Persons actually in Office at the time of such diminution”

it passed unanimously in the affirmative

On the question to agree to the 12th resolution namely

“That the national Legislature be empowered to appoint inferior Tribunals”

Edition: current; Page: [39]

it passed unanimously in the affirmative [Ayes — 9; noes — 0.]

It was moved and seconded to strike the words

“impeachments of national Officers” out of the 13th resolution

which passed unanimously in the affirmative

It was moved and seconded to alter the 13th resolution so as to read as follows namely

That the jurisdiction of the national Judiciary shall extend to cases arising under laws passed by the general Legislature, and to such other questions as involve the National peace and harmony

which passed unanimously in the affirmative

On the question to agree to the 14 resolution namely

Resolved That provision ought to be made for the admission of States lawfully arising within the limits of the United States, whether from a voluntary junction of government and territory, or otherwise with the consent of a number of voices in the national Legislature less than the whole.

it passed unanimously in the affirmative

On the question to agree to the first clause of the 15th resolution reported from the Committee of the whole House

it passed in the negative [Ayes — 2; noes — 7.]

On the question to agree to the last clause of the 15th resolution

it passed unanimously in the negative

It was moved and seconded to alter the sixteenth resolution so as to read as follows namely

That a republican form of Government shall be guaranteed to each State — and that each State shall be protected against foreign and domestic violence

The residue of Resol. 9. concerning the Executive was postpd. till tomorrow.4

Resol. 10. that Executive shl. have a right to negative legislative acts not afterwards passed by ⅔ of each branch. Agreed to nem. con.5

Resol. 11. “that a Natl. Judiciary be estabd. to consist of one supreme tribunal.” agd. to nem. con.

“The Judges of which to be appointd. by the 2d. branch of the Natl. Legislature.”

Mr. Ghorum, wd. prefer an appointment by the 2d branch to an appointmt. by the whole Legislature; but he thought even that branch too numerous, and too little personally responsible, to ensure a good choice. He suggested that the Judges be appointed by the Execuve. with the advice & consent of the 2d branch, in the mode prescribed by the constitution of Masts. This mode had been long practised in that country, & was found to answer perfectly well.

Mr. Wilson, still wd. prefer an an appointmt. by the Executive; but if that could not be attained, wd. prefer in the next place, the mode suggested by Mr. Ghorum. He thought it his duty however to move in the first instance “that the Judges be appointed by the Executive.” Mr. Govr. Morris 2ded. the motion.

Mr. L. Martin was strenuous for an appt. by the 2d. branch. Being taken from all the States it wd. be best informed of characters & most capable of making a fit choice.

Mr. Sherman concurred in the observations of Mr. Martin, adding that the Judges ought to be diffused, which would be more likely to be attended to by the 2d. branch, than by the Executive.

Mr Mason. The mode of appointing the Judges may Edition: current; Page: [42] depend in some degree on the mode of trying impeachments, of the Executive. If the Judges were to form a tribunal for that purpose, they surely ought not to be appointed by the Executive. There were insuperable objections besides agst. referring the appointment to the Executive. He mentioned as one, that as the seat of Govt. must be in some one State, and the Executive would remain in office for a considerable time, for 4, 5, or 6 years at least he would insensibly form local & personal attachments within the particular State that would deprive equal merit elsewhere, of an equal chance of promotion.

Mr. Ghorum. As the Executive will be responsible in point of character at least, for a judicious and faithful discharge of his trust, he will be careful to look through all the States for proper characters. — The Senators will be as likely to form their attachments at the seat of Govt where they reside, as the Executive. If they can not get the man of the particular State to which they may respectively belong, they will be indifferent to the rest. Public bodies feel no personal responsibly and give full play to intrigue & cabal. Rh. Island is a full illustration of the insensibility to character produced by a participation of numbers, in dishonorable measures, and of the length to which a public body may carry wickedness & cabal.

Mr. Govr. Morris supposed it would be improper for an impeachmt. of the Executive to be tried before the Judges. The latter would in such case be drawn into intrigues with the Legislature and an impartial trial would be frustrated. As they wd. be much about the seat of Govt they might even be previously consulted & arrangements might be made for a prosecution of the Executive. He thought therefore that no argument could be drawn from the probability of such a plan of impeachments agst. the motion before the House.

Mr. M〈adison〉, suggested that the Judges might be appointed by the Executives with the concurrence of 〈⅓ at least〉6 of the 2d. branch. This would unite the advantage of responsibility Edition: current; Page: [43] in the Executive with the security afforded in the 2d. branch agst. any incautious or corrupt nomination by the Executive.

Mr. Sherman, was clearly for an election by the Senate. It would be composed of men nearly equal to the Executive, and would of course have on the whole more wisdom. They would bring into their deliberations a more diffusive knowledge of characters. It would be less easy for candidates to intrigue with them, than with the Executive Magistrate. For these reasons he thought there would be a better security for a proper choice in the Senate than in the Executive.

Mr. Randolph. It is true that when the appt. of the Judges was vested in the 2d. branch an equality of votes had not been given to it. Yet he had rather leave the appointmt. there than give it to the Executive. He thought the advantage of personal responsibility might be gained in the Senate by requiring the respective votes of the members to be entered on the Journal. He thought too that the hope of 〈receiving〉 appts. would be more diffusive if they depended on the Senate, the members of which wd. be diffusively known, than if they depended on a single man who could not be personally known to a very great extent; and consequently that opposition to the System, would be so far weakened

Mr. Bedford thought there were solid reasons agst. leaving the appointment to the Executive. He must trust more to information than the Senate. It would put it in his power to gain over the larger States, by gratifying them with a preference of their Citizens. The responsibility of the Executive so much talked of was chimerical. He could not be punished for mistakes.

Mr. Ghorum remarked that the Senate could have no better information than the Executive They must like him, trust to information from the members belonging to the particular State where the Candidate resided. The Executive would certainly be more answerable for a good appointment, as the whole blame of a bad one would fall on him alone. He did not mean that he would be answerable under any other penalty than that of public censure, which with honorable minds was a sufficient one.

Edition: current; Page: [44]

On the question for referring the appointment of the Judges to the Executive, 〈instead of the 2d. branch〉7

Mr. Ghorum moved “that the Judges be 〈nominated and appointed〉 by the Executive, by & with the advice & consent of the 2d branch 〈& every such nomination shall be made at least days prior to such appointment”〉7. This mode he said had been ratified by the experience of 140 years in Massachussts. If the appt. should be left to either branch of the Legislature, it will be a mere piece of jobbing.

Mr. Govr. Morris 2ded. & supported the motion.

Mr. Sherman thought it less objectionable than an absolute appointment by the Executive; but disliked it as too much fettering the Senate.

〈Mr.〉 Mr〈adison〉 moved that the Judges should be nominated by the Executive, & such nomination should become an appointment 〈if not〉8 disagreed to within days by ⅔ of the 2d. branch. Mr. Govr. 〈Morris〉 2ded. the motion. By common consent the consideration of it was postponed till tomorrow.

“In which (salaries of Judges) no increase or diminution shall be made, 〈so as to affect the persons at the time in office.”〉

Mr. Govr. Morris moved to strike out “or increase”. He thought the Legislature ought to be at liberty to increase salaries as circumstances might require, and that this would not create any improper dependence in the Judges.

Docr. Franklin 〈was in favor of the motion〉, Money may not Edition: current; Page: [45] only become plentier, but the business of the department may increase as the Country becomes more populous.

Mr. 〈Madison.〉 The dependence will be less if the increase alone should be permitted, but it will be improper even so far to permit a dependence Whenever an increase is wished by the Judges, or may be in agitation in the legislature, an undue complaisance in the former may be felt towards the latter. If at such a crisis there should be in Court suits to which leading members of the Legislature may be parties, the Judges will be in a situation which ought not to suffered, if it can be prevented. The variations in the value of money, may be guarded agst. by taking for a standard wheat or some other thing of permanent value. The increase of business will be provided for by an increase of the number who are to do it. An increase of salaries may be easily so contrived as not to effect persons in office.10

Mr. Govr. Morris. The value of money may not only alter but the State of Society may alter. In this event the same quantity of wheat, the same value would not be the same compensation. The Amount of salaries must always be regulated by the manners & the style of living in a Country. The increase of business can not be provided for in the supreme tribunal in the way that has been mentioned. All the business of a certain description whether more or less must be done in that single tribunal — Additional labor alone in the Judges can provide for additional business. Additional compensation therefore ought not to be prohibited.

Mr. Butler could see no necessity for such tribunals. The State Tribunals might do the business.

Mr. L. Martin concurred. They will create jealousies & Edition: current; Page: [46] oppositions in the State tribunals, with the jurisdiction of which they will interfere.

Mr. Ghorum. There are in the States already 〈federal〉 Courts with jurisdiction for trial of piracies &c. committed on the Seas. no complaints have been made by the States or the Courts of the States. Inferior tribunals are essential to render the authority of the Natl. Legislature effectual

Mr. Randolph observed that the Courts of the States can not be trusted with the administration of the National laws. The objects of jurisdiction are such as will often place the General & local policy at variance.

Mr. Govr. Morris urged also the necessity of such a provision

Mr. Sherman was willing to give the power to the Legislature but wished them to make use of the State Tribunals whenever it could be done. with safety to the general interest.

Col. Mason thought many circumstances might arise not now to be foreseen, which might render such a power absolutely necessary.13

On question for agreeing to 12. Resol: 〈empowering the National Legislature to appoint〉14 “inferior tribunals”. Agd. to nem. con.

13. Resol: 〈“Impeachments of national officers” were struck out “on motion for the purpose.〉14 “The jurisdiction of Natl. Judiciary”. Several criticisms having been made on the definition; it was proposed by Mr 〈Madison〉 so to alter as to read thus — “that the jurisdiction shall extend to all cases arising under the Natl. laws: And to such other questions as may involve the Natl. peace & harmony.” which was agreed to nem. con.

Resol. 14. 〈providing for the admission of new States〉14 Agreed to nem. con.

Resol. 15. that provision ought to be made for the continuance of Congs. &c. & for the completion of their engagements.”

Mr. Govr. Morris thought the assumption of their engagements Edition: current; Page: [47] might as well be omitted; and that Congs. ought not to be continued till all the States should adopt the reform; since it may become expedient to give effect to it whenever a certain number of States shall adopt it.

Mr. 〈Madison〉 the clause can mean nothing more than that provision ought to be made for preventing an interregnum; which must exist in the interval between the adoption of the New Govt. and the commencement of its operation, if the old Govt. should cease on the first of these events.

Mr. Wilson did not entirely approve of the manner in which the clause relating to the engagements of Congs. was expressed; but he thought some provision on the subject would be proper in order to prevent any suspicion that the obligations of the Confederacy might be dissolved along with the Governt. under which they were contracted.

The 2d. part as to completion of their engagements. disagd. to. nem. con.

Resol. 16. “That a Republican Constitution & its existing laws ought to be guaranteid to each State by the U. States.”

Mr. Govr. Morris — thought the Resol: very objectionable. He should be very unwilling that such laws as exist in R. Island should be guaranteid.

Mr. Wilson. The object is merely to secure the States agst. dangerous commotions, insurrections and rebellions.

Col. Mason. If the Genl Govt. should have no right to suppress rebellions agst. particular States, it will be in a bad situation indeed. As Rebellions agst. itself originate in & agst. individual States, it must remain a passive Spectator of its own subversion.

Mr. Randolph. The Resoln. has 2. Objects. 1. to secure Republican Government. 2. to suppress domestic commotions. He urged the necessity of both these provisions.

Mr. 〈Madison〉 moved to substitute “that the Constitutional Edition: current; Page: [48] authority of the States shall be guarantied to them respectively agst. domestic as well as foreign violence.”

Docr. McClurg seconded the motion.

Mr. Houston was afraid of perpetuating the existing Constitutions of the States. That of Georgia was a very bad one, and he hoped would be revised & amended. It may also be difficult for the Genl. Govt. to decide between contending parties each of which claim the sanction of the Constitution.

Mr. L. Martin was for leaving the States to suppress Rebellions themselves.

Mr. Ghorum thought it strange that a Rebellion should be known to exist in the Empire, and the Genl. Govt. shd. be restrained from interposing to subdue it, At this rate an enterprising Citizen might erect the standard of Monarchy in a particular State, might gather together partizans from all quarters, might extend his views from State to State, and threaten to establish a tyranny over the whole & the Genl. Govt. be compelled to remain an inactive witness of its own destruction. With regard to different parties in a State; as long as they confine their disputes to words they will be harmless to the Genl. Govt. & to each other. If they appeal to the sword it will then be necessary for the Genl. Govt., however difficult it may be to decide on the merits of their contest, to interpose & put an end to it.

Mr. Carrol. Some such provision is essential. Every State ought to wish for it. It has been doubted whether it is a casus federis at present. And no room ought to be left for such a doubt hereafter.

Mr. Randolph moved to add as amendt. to the motion; “and that no State be at liberty to form any other than a Republican Govt.” Mr. 〈Madison〉 seconded the motion

Mr. Rutlidge thought it unnecessary to insert any guarantee. No doubt could be entertained but that Congs. had the authority if they had the means to co-operate with any State in subduing a rebellion. It was & would be involved in the nature of the thing.

Mr. Wilson moved as a better expression of the idea, “that a Republican 〈form of Governmt. shall〉 be guarantied Edition: current; Page: [49] to each State & that each State shall be protected agst. foreign & domestic violence.15

This seeming to be well received, Mr. 〈Madison〉 & Mr. Randolph withdrew their propositions & on the Question for agreeing to Mr. Wilson’s motion it passed nem. con.

It was moved and seconded to agree to the following proposition,2 namely,

“to be chosen by Electors appointed for that purpose by the Legislatures of the States, in the following proportion

One person from each State whose numbers, according to the ratio fixed in the resolution, shall not exceed 100,000 — Two from each of the others, whose numbers shall not exceed 300,000 — and Three from each of the rest.

On the question to agree to the following clause namely

“To be chosen by electors appointed for that purpose by the Legislatures of the States”

To reconsider all the clauses of the 9th resolution except the first. — No Caroa withdraw their negative.

9

1

[182]

dd

aye

aye

aye

aye

aye

aye

no

no

no

“To be chosen by electors appointed for that purpose”

6

3

1

[183]

aye

aye

aye

aye

aye

aye

no

aye

no

aye

“by the Legislatures of the States”

8

2

[184]

no

no

no

no

no

no

no

aye

aye

no

To restore the words “to be ineligible a second time”

2

8

[185]

dd

no

aye

no

no

no

no

dd

aye

aye

for “seven years”

3

5

2

[186]

aye

aye

aye

aye

no

aye

aye

aye

aye

aye

for “six years”

9

1

MADISON Thursday, July. 19. in Convention.

On reconsideration of the vote rendering the Executive re-eligible a 2d. time,

Edition: current; Page: [52]

Mr. Martin moved to reinstate the words “to be ineligible a 2d. time”.

Mr. Governeur Morris. It is necessary to take into one view all that relates to the establishment of the Executive; on the due formation of which must depend the efficacy & utility of the Union among the present and future States. It has been a maxim in political Science that Republican Government is not adapted to a large extent of Country, because the energy of the Executive Magistracy can not reach the extreme parts of it. Our Country is an extensive one. We must either then renounce the blessings of the Union, or provide an Executive with sufficient vigor to pervade every part of it. This subject was of so much importance that he hoped to be indulged in an extensive view of it. One great object of the Executive is to controul the Legislature. The Legislature will continually seek to aggrandize & perpetuate themselves; and will seize those critical moments produced by war, invasion or convulsion for that purpose. It is necessary then that the Executive Magistrate should be the guardian of the people, even of the lower classes, agst. Legislative tyranny, against the Great & the wealthy who in the course of things will necessarily compose — the Legislative body. Wealth tends to corrupt the mind & to nourish its love of power, and to stimulate it to oppression. History proves this to be the spirit of the opulent. The check provided in the 2d. branch was not meant as a check on Legislative usurpations of power, but on the abuse of lawful powers, on the propensity in the 1st. branch to legislate too much to run into projects of paper money & similar expedients. It is no check on Legislative tyranny. On the contrary it may favor it, and if the 1st. branch can be seduced may find the means of success. The Executive therefore ought to be so constituted as to be the great protector of the Mass of the people. — It is the duty of the Executive to appoint the officers & to command the forces of the Republic: to appoint 1. ministerial officers for the administration of public affairs. 2. Officers for the dispensation of Justice — Who will be the best Judges whether these appointments be well made? The people at Edition: current; Page: [53] large, who will know, will see, will feel the effects of them — Again who can judge so well of the discharge of military duties for the protection & security of the people, as the people themselves who are to be protected & secured? He finds too that the Executive is not to be re-eligible. What effect will this have? 1. it will destroy the great incitement to merit public esteem by taking away the hope of being rewarded with a reappointment. It may give a dangerous turn to one of the strongest passions in the human breast. The love of fame is the great spring to noble & illustrious actions. Shut the Civil road to Glory & he may be compelled to seek it by the sword. 2. It will tempt him to make the most of the Short space of time allotted him, to accumulate wealth and provide for his friends. 3. It will produce violations of the very constitution it is meant to secure. In moments of pressing danger the tried abilities and established character of a favorite Magistrate will prevail over respect for the forms of the Constitution. The Executive is also to be impeachable. This is a dangerous part of the plan. It will hold him in such dependence that he will be no check on the Legislature, will not be a firm guardian of the people and of the public interest. He will be the tool of a faction, of some leading demagogue in the Legislature. These then are the faults of the Executive establishment as now proposed. Can no better establishmt. be devised? If he is to be the Guardian of the people let him be appointed by the people? If he is to be a check on the Legislature let him not be impeachable. Let him be of short duration, that he may with propriety be re-eligible.—It has been said that the candidates for this office will not be known to the people. If they be known to the Legislature, they must have such a notoriety and eminence of Character, that they cannot possibly be unknown to the people at large. It cannot be possible that a man shall have sufficiently distinguished himself to merit this high trust without having his character proclaimed by fame throughout the Empire. As to the danger from an unimpeachable magistrate he could not regard it as formidable. There must be certain great officers of State; a minister of finance, of war, of foreign affairs &c. Edition: current; Page: [54] These he presumes will exercise their functions in subordination to the Executive, and will be amenable by impeachment to the public Justice. Without these ministers the Executive can do nothing of consequence. He suggested a biennial election of the Executive at the time of electing the 1st. branch, and the Executive to hold over, so as to prevent any interregnum in the Administration. An election by the people at large throughout so great an extent of country could not be influenced, by those little combinations and those momentary lies which often decide popular elections within a narrow sphere. It will probably, be objected that the election will be influenced by the members of the Legislature; particularly of the 1st. branch, and that it will be nearly the same thing with an election by the Legislature itself. It could not be denied that such an influence would exist. But it might be answered that as the Legislature or the candidates for it would be divided, the enmity of one part would counteract the friendship of another; that if the administration of the Executive were good, it would be unpopular to oppose his re-election, if bad it ought to be opposed & a reappointmt. prevented; and lastly that in every view this indirect dependence on the favor of the Legislature could not be so mischievous as a direct dependence for his appointment. He saw no alternative for making the Executive independent of the Legislature but either to give him his office for life, or make him eligible by the people. — Again, it might be objected that two years would be too short a duration. But he believes that as long as he should behave himself well, he would be continued in his place. The extent of the Country would secure his re-election agst the factions & discontents of particular States. It deserved consideration also that such an ingredient in the plan would render it extremely palatable to the people. These were the general ideas which occurred to him on the subject, and which led him to wish & move that the 〈whole constitution of the Executive〉 might undergo reconsideration.

Mr. Randolph urged the motion of Mr. L. Martin for restoring the words making the Executive ineligible a 2d. time. If he ought to be independent, he should not be left under a Edition: current; Page: [55] temptation to court a re-appointment. If he should be re-appointable by the Legislature, he will be no check on it. His revisionary power will be of no avail. He had always thought & contended as he still did that the danger apprehended by the little States was chimerical, but those who thought otherwise ought to be peculiarly anxious for the motion. If the Executive be appointed, as has been determined, by the Legislature, he will probably be appointed either by joint ballot of both houses, or be nominated by the 1st. and appointed by the 2d. branch. In either case the large States will preponderate. If he is to court the same influence for his re-appointment, will he 〈not〉 make his revisionary power. and all the other functions of his administration subservient to the views of the large States. Besides — is there not great reason to apprehend that in case he should be re-eligible, a false complaisance in the Legislature might lead them to continue an unfit man in office in preference to a fit one. It has been said that a constitutional bar to reappointment will inspire unconstitutional endeavours to perpetuate himself. It may be answered that his endeavous can have no effect unless the people be corrupt to such a degree as to render all precautions hopeless: to which may be added that this argument supposes him to be more powerful & dangerous, than other arguments which have been used, admit, and consequently calls for stronger fetters on his authority. He thought an election by the Legislature with an incapacity to be elected a second time would be more acceptable to the people that the plan suggested by Mr. Govr. Morris.7

Mr. King. did not like the ineligibility. He thought there was great force in the remark of Mr. Sherman, that he who has proved himself to be most fit for an Office, ought not to be excluded by the constitution from holding it. He would therefore prefer any other reasonable plan that could be substituted. He was much disposed to think that in such cases the people at large would chuse wisely. There was indeed some difficulty arising from the improbability of a general Edition: current; Page: [56] concurrence of the people in favor of any one man. On the whole he was of opinion that an appointment by electors chosen by the people for the purpose, would be liable to fewest objections.

Mr. Patterson’s ideas nearly coincided he said with those of Mr. King. He proposed that the Executive should be appointed by Electors to be chosen by the States in a ratio that would allow one elector to the smallest and three to the largest States.

Mr. Wilson. It seems to be the unanimous sense that the Executive should not be appointed by the Legislature, unless he be rendered in-eligible a 2d. time: he perceived with pleasure that the idea was gaining ground, of an election mediately or immediately by the people.

Mr. 〈Madison〉 If it be a fundamental principle of free Govt. that the Legislative, Executive & Judiciary powers should be separately exercised; it is equally so that they be independently exercised. There is the same & perhaps greater reason why the Executive shd. be independent of the Legislature, than why the Judiciary should: A coalition of the two former powers would be more immediately & certainly dangerous to public liberty. It is essential then that the appointment of the Executive should either be drawn from some source, or held by some tenure, that will give him a free agency with regard to the Legislature. This could not be if he was to be appointable from time to time by the Legislature. It was not clear that an appointment in the 1st. instance 〈even〉 with an ineligibility afterwards would not establish an improper connection between the two departments. Certain it was that the appointment would be attended with intrigues and contentions that ought not to be unnecessarily admitted. He was disposed for these reasons to refer the appointment to some other Source. The people at large was in his opinion the fittest in itself.8 It would be as likely as any that could be devised to produce an Executive Magistrate of distinguished Character. The people generally could only know & vote for Edition: current; Page: [57] some Citizen whose merits had rendered him an object of general attention & esteem. There was one difficulty however of a serious nature attending an immediate choice by the people. The right of suffrage was much more diffusive in the Northern than9 the Southern States; and the latter could have no influence in the election on the score of the Negroes. The substitution of electors obviated this difficulty and seemed on the whole to be liable to the fewest objections.

Mr. Gerry. If the Executive is to be be elected by the Legislature he certainly ought not to be re-eligible. This would make him absolutely dependent. He was agst. a popular election. The people are uninformed, and would be misled by a few designing men. He urged the expediency of an appointment of the Executive by Electors to be chosen by the State Executives. The people of the States will then choose the 1st. branch: The legislatures of the States the 2nd. branch of the National Legislature, and the Executives of the States, the National Executive — This he thought would form a strong attachnt. in the States to the National System. The popular mode of electing the chief Magistrate would certainly be the worst of all. If he should be so elected & should do his duty, he will be turned out for it like Govr Bowdoin in Massts & President Sullivan in N. Hamshire.

On the question on Mr Govr. Morris motion to reconsider generally the Constitution of the Executive —

Mas. ay. Ct. ay. N. J. ay. & all the others ay.

Mr. Elseworth moved to strike out the appointmt. by the Natl. Legislature, and insert “to be chosen by electors appointed by the Legislatures of the States in the following ratio; towit—one for each State not exceeding 200,00010 inhabts. two for each above yt. number & not exceeding 300,000. and, three for each State exceeding 300,000. — Mr. Broome 2ded. the motion

Mr Rutlidge was opposed to all the modes except the appointmt. by the Natl. Legislature. He will be sufficiently independent, if he be not re-eligible

Edition: current; Page: [58]

Mr. Gerry preferred the motion of Mr. Elseworth to an appointmt. by the Natl. Legislature, or by the people; tho’ not to an appt. by the State Executives. He moved that the electors proposed by Mr. E. should be 25 in number, and allotted in the following proportion. to N. H. 1. to Mas. 3. to R. I. 1. to. Cont. 2-to N. Y. 2-N. J. 2. Pa. 3. Del. 1. Md. 2. Va. 3. N. C. 2. S. C. 2. Geo. 1.

The question as moved by Mr. Elseworth being divided, on the 1st. part shall ye. Natl. Executive be appointed by Electors?

The part relating to the ratio in which the States sd. chuse electors was postponed nem. con.

Mr. L. Martin moved that the Executive be ineligible a 2d. time.

Mr. Williamson 2ds. the motion. He had no great confidence in the Electors to be chosen for the special purpose. They would not be the most respectable citizens; but persons not occupied in the high offices of Govt. They would be liable to undue influence, which might the more readily be practiced as some of them will probably be in appointment 6 or 8 months before the object of it comes on.

Mr. Elseworth supposed any persons might be appointed Electors, excepting solely, members of the Natl. Legislature.

Mr. Govr Morris was for a short term, in order to avoid impeachts. which wd. be otherwise necessary.

Mr. Butler was agst. a frequency of the elections. Geo & S. C. were too distant to send electors often.

Mr. Elseworth was for 6 years. If the elections be too frequent, the Executive will not be firm eno’. There must be duties which will make him unpopular for the moment. There will be outs as well as ins. His administration therefore will be attacked and misrepresented.

Mr. Williamson was for 6 years. The expence will be considerable & ought not to be unnecessarily repeated. If the Elections are too frequent, the best men will not undertake the service and those of an inferior character will be liable to be corrupted.

It was moved and seconded to add one Elector to the States of New Hampshire and Georgia.

which passed in the affirmative. [Ayes—6; noes—4.]

The last motion having been misunderstood, it was moved and seconded that it be put again — and on the question to give an additional Elector to each of the States of New Hampshire and Georgia

Edition: current; Page: [61]

it passed in the negative. [Ayes — 3; noes — 7.]

On the question to agree to the above resolution respecting the first election of the supreme Executive

it passed in the affirmative. [Ayes — 6; noes — 4.]

It was moved and seconded to agree to the following resolution Resolved That the Electors respectively shall not be Members of the National Legislature, or Officers of the Union, or eligible to the office of supreme Magistrate

which passed in the affirmative.

It was moved and seconded to agree to the following clause of the 9th resolution reported from the Committee of the whole House namely

“To be removable on impeachment and conviction of malpractice or neglect of duty”

It was moved and seconded to postpone the consideration of the last motion

which passed in the negative. [Ayes — 2; noes — 8.]

It was moved and seconded to agree to the clause

which passed in the affirmative [Ayes — 8; noes — 2.]

It was moved and seconded to agree to the following clause namely

“to receive a fixed compensation for the devotion of his time to public service”

MADISON Friday July 20 — in Convention

The 〈postponed〉 Ratio of Electors for appointing the Executive; to wit 1 for each State whose inhabitants do not exceed 100,000,5 &c. being taken up.

× Mr. 〈Madison〉 observed that this would make in time all or nearly all the the States equal. Since there were few that would not in time contain the number of inhabitants entitling them to 3 Electors; that this ratio ought either to be made temporary, or so varied as that it would adjust itself to the growing population of the States.

Mr. Elseworth moved that 2 Electors be allotted to N. H. Some rule ought to be pursued; and N. H. has more than 100,000 inhabitants. He thought it would be proper also to allot 2. to Georgia.

Mr. Broom & Mr. Martin moved to postpone Mr. Gerry’s allotment of Electors, leaving a fit ratio to be reported by Edition: current; Page: [64] the Committee to be appointed for detailing the Resolutions.

Mr. Williamson moved as an amendment to Mr. Gerry’s allotment of Electors in the 1st. instance that in future elections of the Natl. Executive, the number of Electors to be appointed by the several States shall be regulated by their respective numbers of Representatives in the 1st. branch pursuing as nearly as may be the present proportions.

“to be removeable on impeachment and conviction 〈for〉 malpractice or neglect of duty”. See Resol: 9:

Mr. Pinkney & Mr Govr. Morris moved to strike out this part of the Resolution. Mr P. observd. he 〈ought not to〉 be impeachable whilst in office

Mr. Davie. If he be not impeachable whilst in office, he will spare no efforts or means whatever to get himself re-elected. He considered this as an essential security for the good behaviour of the Executive.8

Mr Wilson concurred in the necessity of making the Executive impeachable whilst in office.

Mr. Govr. Morris. He can do no criminal act without Coadjutors who may be punished. In case he should be re-elected, that will be sufficient proof of his innocence. Besides who is to impeach? Is the impeachment to suspend his functions. If it is not the mischief will go on. If it is the impeachment will be nearly equivalent to a displacement, Edition: current; Page: [65] and will render the Executive dependent on those who are to impeach

Col. Mason. No point is of more importance than that the right of impeachment should be continued. Shall any man be above Justice? Above all shall that man be above it, who can commit the most extensive injustice? When great crimes were committed he was for punishing the principal as well as the Coadjutors. There had been much debate & difficulty as to the mode of chusing the Executive. He approved of that which had been adopted at first, namely of referring the appointment to the Natl. Legislature. One objection agst. Electors was the danger of their being corrupted by the Candidates: & this furnished a peculiar reason in favor of impeachments whilst in office. Shall the man who has practised corruption & by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?

Docr. Franklin was for retaining the clause as favorable to the executive. History furnishes one example only of a first Magistrate being formally brought to public Justice. Every body cried out agst this as unconstitutional. What was the practice before this in cases where the chief Magistrate rendered himself obnoxious? Why recourse was had to assassination in wch. he was not only deprived of his life but of the opportunity of vindicating his character. It wd. be the best way therefore to provide in the Constitution for the regular punishment of the Executive when his misconduct should deserve it, and for his honorable acquittal when he should be unjustly accused.

Mr. Govr Morris admits corruption & some few other offences to be such as ought to be impeachable; but thought the cases ought to be enumerated & defined:

Mr. 〈Madison〉 — thought it indispensable that some provision should be made for defending the Community agst the incapacity, negligence or perfidy of the chief Magistrate. The limitation of the period of his service, was not a sufficient security. He might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation Edition: current; Page: [66] or oppression. He might betray his trust to foreign powers. The case of the Executive Magistracy was very distinguishable, from that of the Legislative or of any other public body, holding offices of limited duration. It could not be presumed that all or even a majority of the members of an Assembly would either lose their capacity for discharging, or be bribed to betray, their trust. Besides the restraints of their personal integrity & honor, the difficulty of acting in concert for purposes of corruption was a security to the public. And if one or a few members only should be seduced, the soundness of the remaining members, would maintain the integrity and fidelity of the body. In the case of the Executive Magistracy which was to be administered by a single man, loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic.

Mr. Pinkney did not see the necessity of impeachments. He was sure they ought not to issue from the Legislature who would in that case hold them as a rod over the Executive and by that means effectually destroy his independence. His revisionary power in particular would be rendered altogether insignificant.

Mr. Gerry urged the necessity of impeachments. A good magistrate will not fear them. A bad one ought to be kept in fear of them. He hoped the maxim would never be adopted here that the chief Magistrate could do 〈no〉 wrong.

Mr. King expressed his apprehensions that an extreme caution in favor of liberty might enervate the Government we were forming. He wished the House to recur to the primitive axiom that the three great departments of Govts. should be separate & independent: that the Executive & Judiciary should be so as well as the Legislative: that the Executive should be so equally with the Judiciary. Would this be the case if the Executive should be impeachable? It had been said that the Judiciary would be impeachable. But it should have been remembered at the same time that the Judiciary hold their places9 not for a limited time, but during good Edition: current; Page: [67] behaviour. It is necessary therefore that a forum should be established for trying misbehaviour. Was the Executive to hold his place during good behaviour?10 — The Executive was to hold his place for a limited term like the members of the Legislature; Like them particularly the Senate whose members would continue in appointmt the same term of 6 years. he would periodically be tried for his behaviour by his electors, who would continue or discontinue him in trust according to the manner in which he had discharged it. Like them therefore, he ought to be subject to no intermediate trial, by impeachment. He ought not to be impeachable unless he hold his office during good behavior, a tenure which would be most agreeable to him; provided an independent and effectual forum could be devised; But under no circumstances ought he to be impeachable by the Legislature. This would be destructive of his independence and of the principles of the Constitution. He relied on the vigor of the Executive as a great security for the public liberties.

Mr. Randolph. The propriety of impeachments was a favorite principle with him; Guilt wherever found ought to be punished. The Executive will have great opportunitys of abusing his power; particularly in time of war when the military force, and in some respects the public money will be in his hands. Should no regular punishment be provided, it will be irregularly inflicted by tumults & insurrections. He is aware of the necessity of proceeding with a cautious hand, and of excluding as much as possible the influence of the Legislature from the business. He suggested for consideration an idea which had fallen (from Col Hamilton) of composing a forum out of the Judges belonging to the States: and even of requiring some preliminary inquest whether just grounds of impeachment existed.

Doctr. Franklin mentioned the case of the Prince of Orange during the late war. An agreement was made between France & Holland; by which their two fleets were to unite at a certain time & place. The Du〈t〉ch fleet did not appear. Every body Edition: current; Page: [68] began to wonder at it. At length it was suspected that the Statholder was at the bottom of the matter. This suspicion prevailed more & more. Yet as he could not be impeached and no regular examination took place, he remained in his office, and strengtheing his own party, as the party opposed to him became formidable, he gave birth to the most violent animosities & contentions. Had he been impeachable, a regular & peaceable inquiry would have taken place and he would if guilty have been duly punished, if innocent restored to the confidence of the public.

Mr. King remarked that the case of the Statholder was not applicable. He held his place for life, and was not periodically elected. In the former case impeachments are proper to secure good behaviour. In the latter they are unnecessary; the periodical responsibility11 to the electors12 being an equivalent security.

Mr Wilson observed that if the idea were to be pursued, the Senators who are to hold their places during the same term with the Executive. ought to be subject to impeachment & removal.

Mr. Pinkney apprehended that some gentlemen reasoned on a supposition that the Executive was to have powers which would not be committed to him: 〈He presumed〉 that his powers would be so circumscribed as to render impeachments unnecessary.

Mr. Govr. Morris,’s opinion had been changed by the arguments used in the discussion. He was now sensible of the necessity of impeachments, if the Executive was to continue for any time in office. Our Executive was not like a Magistrate having a life interest, much less like one having an hereditary interest in his office. He may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay without being able to guard agst it by displacing him. One would think the King of England well secured agst bribery. He has as it were a fee Edition: current; Page: [69] simple in the whole Kingdom. Yet Charles II was bribed by Louis XIV. The Executive ought therefore to be impeachable for treachery; Corrupting his electors, and incapacity were other causes of impeachment. For the latter he should be punished not as a man, but as an officer, and punished only by degradation from his office. This Magistrate is not the King but the prime-Minister. The people are the King. When we make him amenable to Justice however we should take care to provide some mode that will not make him dependent on the Legislature.

〈It was moved & 2ded. to postpone the question of impeachments which was negatived. Mas. & S. Carolina only being ay.〉13

“〈to be paid out of the National Treasury” agreed to, N. Jersey only in the negative.〉14

Mr. Gerry & Govr. Morris moved ‘that the Electors of the Executive shall not be members of the Natl. Legislature, nor officers of the U. States, nor shall the Electors themselves be eligible to the 〈supreme〉 Magistracy.”15 Agreed to nem. con.

Docr. McClurg asked whether it would not be necessary, before a Committee for detailing the Constitution should be appointed, to determine on the means by which the Executive. is to carry the laws into effect, and to resist combinations agst. them. Is he to have a military force for the purpose, or to have the command of the Militia, the only existing force that can be applied to that use? As the Resolutions now Edition: current; Page: [70] Stand the Committee will have no determinate directions on this great point.

Mr. Wilson thought that some additional directions to the Committee wd. be necessary.

Mr. King. The Committee are to provide for the end. Their discretionary power to provide for the means is involved according to an established axiom.

Adjourned

Edition: current; Page: [71]

SATURDAY, JULY 21, 1787.

JOURNAL Saturday July 21. 1787.

It was moved and seconded to add the following clause to the resolution respecting the Electors of the supreme Executive, namely

“Who shall be paid out of the national Treasury for the devotion of their time to the public service”

To agree to the nomination of the Judges by the Executive which shall become an appointment unless disagreed to by the second Branch of ye Legislature

3

6

[201]

no

aye

no

aye

aye

no

aye

aye

aye

The Judges shall be appointed by the second Branch of the Legislature

6

3

[202]

no

no

aye

no

no

no

no

no

no

To adjourn

1

8

Edition: current; Page: [73]

MADISON Saturday July 21 in Convention

Mr. Williamson moved that the Electors of the Executive should be paid out of the National Treasury for the Service to be performed by them”. Justice required this: as it was a national service they were to render. The motion was agreed to nem.— con.

Mr. Wilson moved as an amendment to Resoln: 10. that the 〈supreme〉 Natl Judiciary should be associated with the Executive in the Revisionary power”. This proposition had been before made, and failed; but he was so confirmed by reflection in the opinion of its utility, that he thought it incumbent on him to make another effort: The Judiciary ought to have an opportunity of remonstrating agst projected encroachments on the people as well as on themselves. It had been said that the Judges, as expositors of the Laws would have an opportunity of defending their constitutional rights. There was weight in this observation; but this power of the Judges did not go far enough. Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify the Judges in refusing to give them effect. Let them have a share in the Revisionary power, and they will have an opportunity of taking notice of these characters of a law, and of counteracting, by the weight of their opinions the improper views of the Legislature. — Mr 〈Madison〉 2ded. the motion

Mr Ghorum did not see the advantage of employing the Judges in this way. As Judges they are not to be presumed to possess any peculiar knowledge of the mere policy of public measures. Nor can it be necessary as a security for their constitutional rights. The Judges in England have no such additional provision for their defence, yet their jurisdiction is not invaded. He thought it would be best to let the Executive alone be responsible, and at most to authorize him to call on Judges for their opinions,

Mr. Elseworth approved heartily of the motion. The aid of Edition: current; Page: [74] the Judges will give more wisdom & firmness to the Executive. They will possess a systematic and accurate knowledge of the Laws, which the Executive can not be expected always to possess. The law of Nations also will frequently come into question. Of this the Judges alone will have competent information.

Mr. 〈Madison〉 — considered the object of the motion as of great importance to the meditated Constitution. It would be useful to the Judiciary departmt. by giving it an additional opportunity of defending itself agst: Legislative encroachments; It would be useful to the Executive, by inspiring additional confidence & firmness in exerting the revisionary power: It would be useful to the Legislature by the valuable assistance it would give in preserving a consistency, conciseness, perspicuity & technical propriety in the laws, qualities peculiarly necessary; & yet shamefully wanting in our republican Codes. It would moreover be useful to the Community at large as an additional check agst. a pursuit of those unwise & unjust measures which constituted so great a portion of our calamities. If any solid objection could be urged agst. the motion, it must be on the supposition that it tended to give too much strength either to the Executive or Judiciary. He did not think there was the least ground for this apprehension. It was much more to be apprehended that notwithstanding this co-operation of the two departments, the Legislature would still be an overmatch for them. Experience in all the States had evinced a powerful tendency in the Legislature to absorb all power into its vortex. This was the real source of danger to the American Constitutions; & suggested the necessity of giving every defensive authority to the other departments that was consistent with republican principles.

Mr. Mason said he had always been a friend to this provision. It would give a confidence to the Executive, which he would not otherwise have, and without which the Revisionary power would be of little avail.

Mr. Gerry did not expect to see this point which had undergone full discussion, again revived. The object he conceived Edition: current; Page: [75] of the Revisionary power was merely to secure the Executive department agst. legislative encroachment. The Executive therefore who will best know and be ready to defend his rights ought alone to have the defence of them. The motion was liable to strong objections. It was combining & mixing together the Legislative & the other departments. It was establishing an improper coalition between the Executive & Judiciary departments. It was making Statesmen of the Judges; and setting them up as the guardians of the Rights of the people. He relied for his part on the Representatives of the people as the guardians of their Rights & interests. It was making the Expositors of the Laws, the Legislators which ought never to be done. A better expedient for correcting the laws, would be to appoint as had been done in Pena. a person or persons of proper skill, to draw bills for the Legislature.

Mr. Strong thought with Mr. Gerry that the power of making ought to be kept distinct from that of expounding, the laws. No maxim was better established. The Judges in exercising the function of expositors might be influenced by the part they had taken, in framing the laws.

Mr. Govr. Morris. Some check being necessary on the Legislature, the question is in what hands it should be lodged. On one side it was contended that the Executive alone ought to exercise it. He did not think that an Executive appointed for 6 years, and impeachable whilst in office, wd. be a very effectual check. On the other side it was urged that he ought to be reinforced by the Judiciary department. Agst. this it was objected that Expositors of laws ought to have no hand in making them, and arguments in favor of this had been drawn from England. What weight was due to them might be easily determined by an attention to facts. The truth was that the Judges in England had a great share in ye Legislation. They are consulted in difficult & doubtful cases. They may be & some of them are members of the Legislature. They are or may be members of the privy Council, and can there advise the Executive as they will do with us if the motion succeeds. The influence the English Judges may have in the latter capacity in strengthening the Executive check Edition: current; Page: [76] can not be ascertained, as the King by his influence in a manner dictates the laws. There is one difference in the two Cases however which disconcerts all reasoning from the British to our proposed Constitution. The British Executive has so great an interest in his prerogatives and such powerful means of defending them that he will never yield any part of them. The interest of our Executive is so inconsiderable & so transitory, and his means of defending it so feeble, that there is the justest ground to fear his want of firmness in resisting incroachments. He was extremely apprehensive that the auxiliary firmness & weight of the Judiciary would not supply the deficiency. He concurred in thinking the public liberty in greater danger from Legislative usurpations than from any other source. It had been said that the Legislature ought to be relied on as the proper Guardians of liberty. The answer was short and conclusive. Either bad laws will be pushed or not. On the latter supposition no check will be wanted. On the former a strong check will be necessary: And this is the proper supposition. Emissions of paper money, largesses to the people — a remission of debts and similar measures, will at sometimes be popular, and will be pushed for that reason At other times such measures will coincide with the interests of the Legislature themselves, & that will be a reason not less cogent for pushing them. It might be thought that the people will not be deluded and misled in the latter case. But experience teaches another lesson. The press is indeed a great means of diminishing the evil, yet it is found to be unable to prevent it altogether.

Mr. L. Martin. considered the association of the Judges with the Executive as a dangerous innovation; as well as one which, could not produce the particular advantage expected from it. A knowledge of mankind, and of Legislative affairs cannot be presumed to belong in a higher deger degree to the Judges than to the Legislature. And as to the Constitutionality of laws, that point will come before the Judges in their proper official character. In this character they have a negative on the laws. Join them with the Executive in the Revision and they will have a double negative. It is necessary Edition: current; Page: [77] that the Supreme Judiciary should have the confidence of the people. This will soon be lost, if they are employed in the task of remonstrating agst. popular measures of the Legislature. Besides in what mode & proportion are they to vote in the Council of Revision?

〈Mr.〉 M〈adison〉 could not discover in the proposed association of the Judges with the Executive in the Revisionary check on the Legislature any violation of the maxim which requires the great departments of power to be kept separate & distinct. On the contrary he thought it an auxiliary precaution in favor of the maxim. If a Constitutional discrimination of the departments on paper were a sufficient security to each agst. encroachments of the others, all further provisions would indeed be superfluous. But experience had taught us a distrust of that security; and that it is necessary to introduce such a balance of powers and interests, as will guarantee the provisions on paper. Instead therefore of contenting ourselves with laying down the Theory in the Constitution that each department ought to be separate & distinct, it was proposed to add a defensive power to each which should maintain the Theory in practice. In so doing we did not blend the departments together. We erected effectual barriers for keeping them separate. The most regular example of this theory was in the British Constitution. Yet it was not only the practice there to admit the Judges to a seat in the legislature, and in the Executive Councils, and to submit to their previous examination all laws of a certain description, but it was a part of their Constitution that the Executive might negative any law whatever; a part of their Constitution which had been universally regarded as calculated for the preservation of the whole. The objection agst. a union of the Judiciary & Executive branches in the revision of the laws, had either no foundation or was not carried far enough. If such a Union was an improper mixture of powers, or such a Judiciary check on the laws, was inconsistent with the Theory of a free Constitution, it was equally so to admit the Executive to any participation in the making of laws; and the revisionary plan ought to be discarded altogether.

Edition: current; Page: [78]

Col Mason Observed that the defence of the Executive was not the sole object of the Revisionary power. He expected even greater advantages from it. Notwithstanding the precautions taken in the Constitution of the Legislature, it would so much resemble that of the individual States, that it must be expected frequently to pass unjust and pernicious laws. This restraining power was therefore essentially necessary. It would have the effect not only of hindering the final passage of such laws; but would discourage demagogues from attempting to get them passed. It had been said (by Mr. L. Martin) that if the Judges were joined in this check on the laws, they would have a double negative, since in their expository capacity of Judges they would have one negative. He would reply that in this capacity they could impede in one case only, the operation of laws. They could declare an unconstitutional law void. But with regard to every law however unjust oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as Judges to give it a free course. He wished the further use to be made of the Judges, of giving aid in preventing every improper law. Their aid will be the more valuable as they are in the habit and practice of considering laws in their true principles, and in all their consequences.

Mr. Wilson. The separation of the departments does not require that they should have separate objects but that they should act separately tho’ on the same objects. It is necessary that the two branches of the Legislature should be separate and distinct, yet they are both to act precisely on the same object

Mr. Gerry had rather give the Executive an absolute negative for its own defence than thus to blend together the Judiciary & Executive departments. It will bind them together in an offensive and defensive alliance agst. the Legislature, and render the latter unwilling to enter into a contest with them.

Mr. Govr. Morris was surprised that any defensive provision for securing the effectual separation of the departments should be considered as an improper mixture of them. Suppose Edition: current; Page: [79] that the three powers, were to be vested in three persons, by compact among themselves; that one was to have the power of making — another of executing, and a third of judging, the laws. Would it not be very natural for the two latter after having settled the partition on paper, to observe, and would not candor oblige the former to admit, that as a security agst. legislative acts of the former which might easily be so framed as to undermine the powers of the two others, the two others ought to be armed with a veto for their own defence, or at least to have an opportunity of stating their objections agst. acts of encroachment? And would any one pretend that such a right tended to blend & confound powers that ought to be separately exercised?4 As well might it be said that If three neighbours had three distinct farms, a right in each to defend his farm agst. his neighbours, tended to blend the farms together.

Mr. Ghorum. All agree that a check on the Legislature is necessary. But there are two objections agst. admitting the Judges to share in it which no observations on the other side seem to obviate. the 1st. is that the Judges ought to carry into the exposition of the laws no prepossessions with regard to them. 2d. that as the Judges will outnumber the Executive, the revisionary check would be thrown entirely out of the Executive hands, and instead of enabling him to defend himself, would enable the Judges to sacrifice him.

Mr. Wilson. The proposition is certainly 〈not〉 liable to all the objections which have been urged agst. it. According to (Mr. Gerry) it will unite the Executive & Judiciary in an offensive & defensive alliance agst. the Legislature. According to Mr. Ghorum it will lead to a subversion of the Executive by the Judiciary influence. To the first gentleman the answer was obvious; that the joint weight of the two departments was necessary to balance the single weight of the Legislature. To the 1st. objection stated by the other Gentleman it might be answered that supposing the prepossion to mix Edition: current; Page: [80] itself with the exposition, the evil would be overbalanced by the advantages promised by the expedient. To the 2d. objection, that such a rule of voting might be provided in the detail as would guard agst. it.

Mr. Rutlidge thought the Judges of all men the most unfit to be concerned in the revisionary Council. The Judges ought never to give their opinion on a law till it comes before them. He thought it equally unnecessary. The Executive could advise with the officers of State, as of war, finance &c. and avail himself of their information and opinions.

On Question on Mr. Wilson’s motion for joining the Judiciary in the Revision of laws5 〈it passed in the negative〉 —

〈Resol: 10 giving the Ex. a qualified veto〉 without the amendmt. was then agd. to nem. con.

The motion made by Mr. 〈Madison〉 July 18. & then postponed, “that the Judges shd. be nominated by the Executive & such nominations become appointments unless disagreed to by ⅔ of the 2d. branch of the Legislature,” was now resumed.

Mr. Madison stated as his reasons for the motion. 1 that it secured the responsibility of the Executive who would in general be more capable & likely to select fit characters than the Legislature, or even the 2d. b. of it, who might hide their selfish motives under the number concerned in the appointment- 2 that in case of any flagrant partiality or error, in the nomination, it might be fairly presumed that ⅔ of the 2d. branch would join in putting a negative on it. 3. that as the 2d. b. was very differently constituted when the appointment of the Judges was formerly referred to it, and was now to be composed of equal votes from all the States, the principle of compromise which had prevailed in other instances required in this that their shd. be a concurrence of two authorities, in one of which the people, in the other the states, should be Edition: current; Page: [81] represented. The Executive Magistrate wd be considered as a national officer, acting for and equally sympathising with every part of the U. States. If the 2d. branch alone should have this power, the Judges might be appointed by a minority of the people, tho’ by a majority, of the States, which could not be justified on any principle as their proceedings were to relate to the people, rather than to the States: and as it would moreover throw the appointments entirely into the hands of ye Nthern States, a perpetual ground of jealousy & discontent would be furnished to the Southern States.

Mr. Pinkney was for placing the appointmt. in the 2d. b. exclusively. The Executive will possess neither the requisite knowledge of characters, nor confidence of the people for so high a trust.

Mr. Randolph wd. have preferred the mode of appointmt. proposed formerly by Mr Ghorum, as adopted in the Constitution of Massts. but thought the motion depending so great an improvement of the clause as it stands, that he anxiously wished it success. He laid great stress on the responsibility of the Executive as a security for fit appointments. Appointments by the Legislatures have generally resulted from cabal, from personal regard, or some other consideration than a title derived from the proper qualifications. The same inconveniencies will proportionally prevail if the appointments be be referred to either branch of the Legislature or to any other authority administered by a number of individuals.

Mr. Elseworth would prefer a negative in the Executive on a nomination by the 2d. branch, the negative to be overruled by a concurrence of ⅔ of the 2d. b. to the mode proposed by the motion; but preferred an absolute appointment by the 2d. branch to either. The Executive will be regarded by the people with a jealous eye. Every power for augmenting unnecessarily his influence will be disliked. As he will be stationary it was not to be supposed he could have a better knowledge of characters. He will be more open to caresses & intrigues than the Senate. The right to supersede his nomination will be ideal only. A nomination under such circumstances will be equivalent to an appointment.

Edition: current; Page: [82]

Mr. Govr. Morris supported the motion. 1. The States in their corporate capacity will frequently have an interest staked on the determination of the Judges. As in the Senate the States are to vote the Judges ought not to be appointed by the Senate. Next to the impropriety of being Judge in one’s own cause, is the appointment of the Judge. 2. It had been said the Executive would be uninformed of characters. The reverse was ye truth. The Senate will be so. They must take the character of candidates from the flattering pictures drawn by their friends. The Executive in the necessary intercourse with every part of the U. S. required by the nature of his administration, will or may have the best possible information. 3. It had been said that a jealousy would be entertained of the Executive. If the Executive can be safely trusted with the command of the army, there can not surely be any reasonable ground of Jealousy in the present case. He added that if the Objections agst. an appointment of the Executive by the Legislature, had the weight that had been allowed there must be some weight in the objection to an appointment of the Judges by the Legislature or by any part of it.

Mr. Gerry. The appointment of the Judges like every other part of the Constitution shd. be so modeled as to give satisfaction both to the people and to the States. The mode under consideration will give satisfaction to neither. He could not conceive that the Executive could be as well informed of characters throughout the Union, as the Senate. It appeared to him also a strong objection that ⅔ of the Senate were required to reject a nomination of the Executive. The Senate would be constituted in the same manner as Congress. And the appointments of Congress have been generally good.

Mr. 〈Madison〉, observed that he was not anxious that ⅔ should be necessary to disagree to a nomination. He had given this form to his motion chiefly to vary it the more clearly from one which had just been rejected. He was content to obviate the objection last made, and accordingly so varied the motion as to let a majority reject.

Col. Mason found it his duty to differ from his colleagues Edition: current; Page: [83] in their opinions & reasonings on this subject. Notwithstanding the form of the proposition by which the appointment seemed to be divided between the Executive & Senate, the appointment was substantially vested in the former alone. The false complaisance which usually prevails in such cases will prevent a disagreement to the first nominations. He considered the appointment by the Executive as a dangerous prerogative. It might even give him an influence over the Judiciary department itself. He did not think the difference of interest between the Northern and Southern 〈States〉 could be properly brought into this argument. It would operate & require some precautions in the case of regulating navigation, commerce & imposts; but he could not see that it had any connection with the Judiciary department.

On the question, the motion now being “that the executive should nominate, & such nominations should become appointments unless disagreed to by the Senate”

MONDAY, JULY 23, 1787.

JOURNAL Monday July 23rd. 1787.

The honorable John Langdon and Nicholas Gillman Esquires, Deputies from the State of New Hampshire, attended and took their seats

The following credentials were produced and read —

(Here insert the credentials of the Deputies of the State of New Hamr1

On the question to agree to the 17th resolution, as reported from the Committee of the whole House, namely

“That provision ought to be made for the amendment of the articles of union, whensoever it shall seem necessary”

it passed unanimously in the affirmative.

It was moved and seconded to add after the word “States” in the 18 resolution, the words “and of the national government”

which passed in the affirmative

On the question to agree to the 18th resolution as amended namely

“That the legislative, Executive, and Judiciary Powers within the several States, and of the national Government, ought to be bound by oath to support the articles of union”

It passed unanimously in the affirmative

It was moved and seconded to strike the following words out of the 19th resolution reported from the Committee of the whole House namely

“to an Assembly or assemblies of representatives, recommended by the several Legislatures, to be expressly chosen by the people to consider and decide thereon”

which passed in the negative. [Ayes — 3; noes — 7.]

Edition: current; Page: [85]

On the question to agree to the 19th resolution as reported from the Committee of the whole House, namely

Resolved that the amendments which shall be offered to the confederation by the Convention ought at a proper time or times after the approbation of Congress to be submitted to an assembly or assemblies of representatives, recommended by the several Legislatures, to be expressly chosen by the People to consider and decide thereon

it passed in the affirmative [Ayes — 9; noes — 1.]

It was moved and seconded to agree to the following resolution, namely

Resolved that the representation in the second Branch of the Legislature of the United States consist of Members from each State, who shall vote per capita.

It was moved and seconded to fill up the blank with the word “Three”

which passed in the negative. [Ayes — 1; noes — 9.]

It was moved and seconded to fill up the blank with the number “Two”

which was unanimously agreed to [Ayes — 10; noes — 0.]

On the question to agree to the resolution as filled up —

it passed in the affirmative. [Ayes — 9; noes — 1.]

It was moved and seconded to reconsider that clause of the resolution respecting the appointment of the supreme Executive.

which passed in the affirmative [Ayes — 7; noes — 3.]

and to-morrow was assigned for the reconsideration. [Ayes — 8; noes — 2.]

It was moved and seconded that the proceedings of the Convention for the establishment of a national government, except what respects the Supreme Executive, be referred to a Committee for the purpose of reporting a Constitution conformably to the Proceedings aforesaid — which passed unanimously in the affirmative [Ayes — 10; noes — 0.]

Edition: current; Page: [86]

DETAIL OF AYES AND NOES

New Hampshire

Massachusetts

Rhode Island

Connecticut

New York

New Jersey

Pennsylvania

Delaware

Maryland

Virginia

North Carolina

South Carolina

Georgia

Questions

Ayes

Noes

Divided

[203]

no

no

aye

no

aye

aye

no

no

no

no

To strike out the words “an assembly or assemblies of representatives recommended by the sevl Legislatures to be expressly chosen by the People to consider and decide thereon” in the last resolution

3

7

[204]

aye

aye

aye

aye

no

aye

aye

aye

aye

aye

To agree to the last resolution

9

1

[205]

no

no

no

aye

no

no

no

no

no

no

To fill up the blank in the resolution respecting the number of representatives in ye 2 branch wh “three.

1

9

[206]

aye

aye

aye

aye

aye

aye

aye

aye

aye

aye

To fill up the blank with the word “Two” unanimous

[207]

aye

aye

aye

aye

aye

no

aye

aye

aye

aye

To agree to the resolution respecting the number of representatives in the 2nd branch and the manner of voting

9

1

[208]

aye

aye

aye

no

aye

no

no

aye

aye

aye

To reconsider the clause respecting the appointment of the supreme Executive.

7

3

[209]

aye

aye

no

no

aye

aye

aye

aye

aye

aye

To reconsider the clause respecting the Executive to-morrow

8

2

[210]

no

no

no

no

no

no

no

no

no

no

To adjourn.

10

[211]

aye

aye

aye

aye

aye

aye

aye

aye

aye

aye

To agree to refer the Proceedings of the Convention to a Commitee

[212]

no

no

no

no

aye

no

no

no

no

no

That the Committee consist of a Member from each State

1

9

[213]

aye

aye

aye

no

no

aye

no

no

aye

no

That the Committee consist of Seven

5

5

[214]

aye

aye

aye

aye

aye

aye

aye

aye

aye

aye

That the Committee consist of five, unanimous

10

Edition: current; Page: [87]

On the question that the Committee consist of a Member from each State

it passed in the negative [Ayes — 1; noes — 9.]

On the question that the Committee consist of Seven

it passed in the negative [Ayes — 5; noes — 5.]

On the question that the Committee consist of five

it passed unanimously in the affirmative. [Ayes — 10; noes — 0.]

To-morrow assigned for appointing the Committee.

and then the house adjourned till to-morrow at 11 o’clock.

MADISON Monday. July. 23. in Convention.

〈Mr. John Langdon & Mr. Nicholas Gilman from N. Hampshire took their seats.〉3

Resoln: 17. that provision ought to be made for future amendments of the articles of Union. Agreed to nem con.

Resoln. 18. “requiring the Legis: Execut: & Judy. of the States to be bound by oath to support the articles of Union”. taken into consideration.

Mr. Williamson suggests that a reciprocal oath should be required from the National officers, to support the Governments of the States.

Mr. Gerry moved to insert as an amendmt. that the oath of the Officers of the National Government also should extend to the support of the Natl. Govt. which was agreed to nem. con.

Mr. Wilson said he was never fond of oaths, considering them as a left handed security only. A good Govt. did not need them. and a bad one could not or ought not to be supported. He was afraid they might too much trammel the the Members of the Existing Govt in case future alterations should be necessary; and prove an obstacle to Resol: 17. just agd. to.4

Mr. Ghorum did not know that oaths would be of much Edition: current; Page: [88] use; but could see no inconsistency between them and the 17. Resol: or any regular amendt. of the Constitution. The oath could only require fidelity to the existing Constitution. A constitutional alteration of the Constitution, could never be regarded as a breach of the Constitution, or of any oath to support it.

Mr Gerry thought with Mr. Ghorum there could be no shadow of inconsistency in the case. Nor could he see any other harm that could result from the Resolution. On the other side he thought one good effect would be produced by it. Hitherto the officers of 〈the two〉 Governments had considered them as distinct from, not as parts of the-General System, & had in all cases of interference given a preference to the State Govts. The proposed oaths will cure that error. —

The Resoln. (18). was agreed to nem. con. —

Resol: 19. referring the new Constitution to Assemblies to be chosen by the people for the express purpose of ratifying it” was next taken into consideration.

Mr. Elseworth moved that it be referred to the Legislatures of the States for ratification. Mr. Patterson 2ded. the motion.

Col. Mason considered a reference of the plan to the authority of the people as one of the most important and essential of the Resolutions. The Legislatures have no power to ratify it. They are the mere creatures of the State Constitutions, and cannot be greater than their creators. And he knew of no power in any of the Constitutions, he knew there was no power in some of them, that could be competent to this object. Whither then must we resort? To the people with whom all power remains that has not been given up in the Constitutions derived from them. It was of great moment he observed that this doctrine should be cherished as the basis of free Government. Another strong reason was that admitting the Legislatures to have a competent authority, it would be wrong to refer the plan to them, because succeeding Legislatures having equal authority could undo the acts of their predecessors; and the National Govt. would stand in each State on the weak and tottering foundation of an Act of Assembly. There was a remaining consideration of some weight. Edition: current; Page: [89] In some of the States the Govts. were 〈not〉 derived from the clear & undisputed authority of the people. This was the case in Virginia. Some of the best & wisest citizens considered the Constitution as established by an assumed authority. A National Constitution derived from such a source would be exposed to the severest criticisms.

Mr Randolph. One idea has pervaded all 〈our〉 proceedings, to wit, that opposition as well from the States as from individuals, will be made to the System to be proposed. Will it not then be highly imprudent, to furnish any unnecessary pretext by the mode of ratifying it. Added to other objections agst. a ratification by Legislative authority only, it may be remarked that there have been instances in which the authority of the Common law has been set up in particular States agst. that of the Confederation which has had no higher sanction than Legislative ratification. — Whose opposition will be most likely to be excited agst. the System? That of the local demogagues who will be degraded by it from the importance they now hold. These will spare no efforts to impede that progress in the popular mind which will be necessary to the adoption of the plan, and which every member will find to have taken place in his own, if he will compare his present opinions with those brought with him into the Convention. It is of great importance therefore that the consideration of this subject should be transferred from the Legislatures where this class of men, have their full influence to a field in which their efforts can be less mischievous. It is moreover worthy of consideration that some of the States are averse to any change in their Constitution, and will not take the requisite steps, unless expressly called upon to refer the question to the people.

Mr. Gerry. The arguments of Col. Mason & Mr. Randolph prove too much, they prove an unconstitutionality in the present federal 〈system〉 & even in some of the State Govts. Inferences drawn from such a source must be inadmissable. Both the State Govts. & the federal Govt. have been too long acquiesced in, to be now shaken. He considered the Confederation to be paramount to any State Constitution. The Edition: current; Page: [90] last article of it authorizing alterations must consequently be so as well as the others, and everything done in pursuance of the article must have the same high authority with the article. — Great confusion he was confident would result from a recurrence to the people. They would never agree on any thing. He could not see any ground to suppose that the people will do what their rulers will not. The rulers will either conform to, or influence the sense of the people.

Mr. Ghorum was agst. referring the plan to the Legislatures. 1. Men chosen by the people for the particular purpose, will discuss the subject more candidly than members of the Legislature who are to lose the power which is to be given up to the Genl. Govt. 2. Some of the Legislatures are composed of several branches. It will consequently be more difficult in these cases to get the plan through the Legislatures, than thro’ a Convention. 3. in the States many of the ablest men are excluded from the Legislatures, but may be elected into a Convention. Among these may be ranked many of the Clergy who are generally friends to good Government. Their services were found to be valuable in the formation & establishment of the Constitution of Massachts. 4. the Legislatures will be interrupted with a variety of little business. by artfully pressing which, designing men will find means to delay from year to year, if not to frustrate altogether the national system. 5 — If the last art: of the Confederation is to be pursued the unanimous concurrence of the States will be necessary. But will any one say. that all the States are to suffer themselves to be ruined, if Rho. Island should persist in her opposition to general measures. Some other States might also tread in her steps. The present advantage which N. York seems to be so much attached to, of taxing her neighbours 〈by the regulation of her trade〉, makes it very probable, that she will be of the number. It would therefore deserve serious consideration whether provision ought not to be made for giving effect to the System without waiting for the unanimous concurrence of the States.

Mr. Elseworth. If there be any Legislatures who should find themselves incompetent to the ratification, he should be Edition: current; Page: [91] content to let them advise with their constituents and pursue such a mode as wd be competent. He thought more was to be expected from the Legislatures than from the people. The prevailing wish of the people in the Eastern States is to get rid of the public debt; and the idea of strengthening the Natl. Govt. carries with it that of strengthening the public debt. It was said by Col. Mason 1. that the Legislatures have no authority in this case. 2. that their successors having equal authority could rescind their acts. As to the 2d. point he could not admit it to be well founded. An Act to which the States by their Legislatures, make themselves parties, becomes a compact from which no one of the parties can recede of itself. As to the 1st. point, he observed that a new sett of ideas seemed to have crept in since the articles of Confederation were established. Conventions of the people, or with power derived expressly from the people, were not then thought of. The Legislatures were considered as competent. Their ratification has been acquiesced in without complaint. To whom have Congs. applied on subsequent occasions for further powers? To the Legislatures; not to the people. The fact is that we exist at present, and we need not enquire how, as a federal Society, united by a charter one article of which is that alterations therein may be made by the Legislative authority of the States. It has been said that if the confederation is to be observed, the States must unanimously concur in the proposed innovations. He would answer that if such were the urgency & necessity of our situation as to warrant a new compact among a part of the States, founded on the consent of the people; the same pleas would be equally valid in favor of a partial compact, founded on the consent of the Legislatures.

Mr. Williamson thought the Resoln. (19) so expressed as that it might be submitted either to the Legislatures or to Conventions recommended by the Legislatures. He observed that some Legislatures were evidently unauthorized to ratify the system. He thought too that Conventions were to be preferred as more likely to be composed of the ablest men in the States.

Edition: current; Page: [92]

Mr. Govr. Morris considered the inference of Mr. Elseworth from the plea of necessity as applied to the establishment of a new System on ye. consent of the people of a part of the States, in favor of a like establishnt. on the consent of a part of the Legislatures as a non sequitur. If the Confederation is to be pursued no alteration can be made without the unanimous consent of the Legislatures: Legislative alterations not conformable to the federal compact, would clearly not be valid. The Judges would consider them as null & void. Whereas in case of an appeal to the people of the U. S., the supreme authority, the federal compact may be altered by a majority of them; in like manner as the Constitution of a particular State may be altered by a majority of the people of the State. The amendmt. moved by Mr. Elseworth erroneously supposes that we are proceeding on the basis of the Confederation. This Convention is unknown to the Confederation.

Mr. King thought with Mr. Elseworth that the Legislatures had a competent authority, the acquiescence of the people of America in the Confederation, being equivalent to a formal ratification by the people. He thought with Mr. E— also that the plea of necessity was as valid in the one case as in the other. At the same time he preferred a reference to the authority of the people expressly delegated to Conventions, as the most certain means of obviating all disputes & doubts concerning the legitimacy of the new Constitution; as well as the most likely means of drawing forth the best men in the States to decide on it. He remarked that among other objections made in the State of N. York to granting powers to Congs. one had been that such powers as would operate within the State, could not be reconciled to the Constitution; and therefore were not grantible by the Legislative authority. He considered it as of some consequence also to get rid of the scruples which some members of the States Legislatures might derive from their oaths to support & maintain the existing Constitutions.

Mr. 〈Madison〉 thought it clear that the Legislatures were incompetent to the proposed changes. These changes would make essential inroads on the State Constitutions, and it would be a novel & dangerous doctrine that a Legislature Edition: current; Page: [93] could change the constitution under which it held its existence. There might indeed be some Constitutions within the Union, which had given, a power to the Legislature to concur in alterations of the federal Compact. But there were certainly some which had not; and in the case of these, a ratification must of necessity be obtained from the people. He considered the difference between a system founded on the Legislatures only, and one founded on the people, to be the true difference between a league or treaty, and a Constitution. The former in point of moral obligation might be as inviolable as the latter. In point of political operation, there were two important distinctions in favor of the latter. 1. A law violating a treaty ratified by a preexisting law, might be respected by the Judges as a law, though an unwise or perfidious one. A law violating a constitution established by the people themselves, would be considered by the Judges as null & void. 2. The doctrine laid down by the law of Nations in the case of treaties is that a breach of any one article by any of the parties, frees the other parties from their engagements. In the case of a union of people under one Constitution, the nature of the pact has always been understood to exclude such an interpretation. Comparing the two modes in point of expediency he thought all the considerations which recommended this Convention in preference to Congress for proposing the reform were in favor of State Conventions in preference to the Legislatures for examining and adopting it.

On question on Mr Elseworth’s motion to refer the plan to the Legislatures of the States

Mr. Govr. Morris moved that the reference of the plan be made to one general Convention, chosen & authorized by the people to consider, amend, & establish the same. — Not seconded.

On question for agreeing to Resolution 19, touching the mode of Ratification 〈as reported from the Committee of the Whole; vi, to refer the Constn. after the approbation of Congs. to assemblies chosen by the people.5

Mr. Govr. Morris & Mr. King moved that the representation in the second branch consist of members from each State, who shall vote per capita.6

Mr Elseworth said he had alway approved of voting in that mode.

Mr. Govr. Morris moved to fill the blank with three. He wished the Senate to be a pretty numerous body. If two members only should be allowed to each State, and a majority be made a quorum the power would be lodged in 14 members, which was too small a number for such a trust.

Mr Ghorum preferred two to three members for the blank. A small number was most convenient for deciding on peace & war &c. which he expected would be vested in the 2d. branch. The number of States will also increase. Kentucky, Vermont, the province of Mayne & Franklin will probably soon be added to the present number. He presumed also that some of the largest States would be divided. The strength of the general Govt. will lie not in the largeness, but in the smallness of the States.

Col. Mason thought 3 from each State including new States would make the 2d. branch too numerous. Besides other objections, the additional expence ought always to form one, where it was not absolutely necessary.

Mr. Williamson. If the number be too great, the distant States will not be on an equal footing with the nearer States. The later can more easily send & support their ablest Citizens. He approved of the voting per capita.

Mr. Houston & Mr. Spaight moved “that the appointment of the Executive by Electors chosen by the Legislatures of the States, be reconsidered.” Mr. Houston urged the extreme inconveniency & the considerable expense, of drawing together men from all the States for the single purpose of electing the Chief Magistrate.

Ordered that to morrow be assigned for the reconsideration. 〈Cont & Pena. no — all the rest ay —〉8

Mr. Gerry moved that the proceedings of the Convention for the establishment of a Natl. Govt. (except the part relating to the Executive), be referred to a Committee to prepare & report a Constitution conformable thereto.

Genl. Pinkney reminded the Convention that if the Committee should fail to insert some security to the Southern States agst. an emancipation of slaves, and taxes on exports,9 he shd. be bound by duty to his State to vote agst. their Report. — The appt. of a Come. as moved by Mr. Gerry. Agd. to nem. con.10

Shall the Come. consist of 10 members” 〈one from each State prest.〉.11 — All the States were no. except Delaware. ay.

2. The Legr. of To-Morrow may repeal the Act of the Legr. of To-Day. So as to Convention —

3. Some of the Constns. not well or authoritatively founded — Acquiesence.

Expediency.

2 Branches in some of the States —

Judges, etc excluded —

The very Men that will oppose — Rh. Island —

The Debt will go with the Govt. — this a prevailing Idea —

The Legr. has no Right to alter the Constn. or the Confedn. —

Not acting under the Confedn. Nothing but a Compact resting upon the 13 States.

Congress over again.

A Violation of the Compact by one of the Parties, leaves the rest at Large, and exonerated from the Agreemt.

Edition: current; Page: [97]

TUESDAY, JULY 24, 1787.

JOURNAL Tuesday July 24th 1787.

It was moved and seconded to strike the following words out of the resolution respecting the supreme Executive namely “by electors appointed for that purpose by the Legislatures of the States” and to insert the words

“by the national Legislature”

which passed in the affirmative. [Ayes — 7; noes — 4.]

It was moved and seconded to strike out the word “six” and to insert the word “fifteen.”

It was moved and seconded to postpone the consideration of the resolution respecting the Executive

which passed in the negative [Ayes — 4; noes — 6; divided — 1.]

It was moved and seconded to agree to the following resolution namely.

Resolved that the supreme Executive shall be chosen every years

by Electors to be taken by lot from the national Legislature; the Electors to proceed immediately to the choice of the Executive, and not to separate until it be made The question of Order being taken on the last Motion — it was determined that the motion is in order. [Ayes — 7; noes — 4.]1

On the question to postpone the consideration of the resolution, it passed unanimously in the affirmative

The House then produced to ballot for the Committee of detail when the honorable Mr Rutledge, Mr Randolph, Mr Gorham, Mr Elsworth, and Mr Wilson were chosen —

Edition: current; Page: [98]

It was moved and seconded to discharge the Committee of the whole House from acting on the propositions submitted to the Convention by the honorable Mr C. Pinckney — and that the said propositions be referred to the Committee to whom the Proceedings of the Convention are referred

which passed unanim: in the affirmative

It was moved and seconded to take the like order on the propositions submitted to the Convention by the honorable Mr Paterson

which passed unan: in the affirmative

and the the House adjourned till to-morrow at 11 o’Clock A. M.

DETAIL OF AYES AND NOES

New Hampshire

Massachusetts

Rhode Island

Connecticut

New York

New Jersey

Pennsylvania

Delaware

Maryland

Virginia

North Carolina

South Carolina

Georgia

Questions

Ayes

Noes

Divided

[215]

aye

aye

no

aye

no

aye

no

no

aye

aye

aye

To strike out the words “by Electors &ca and to insert the words “by the national Legislature”

7

4

[216]

no

no

aye

no

aye

dd

aye

aye

no

no

no

To postpone the resolution respecting the Executive

4

6

1

[217]

aye

aye

no

aye

aye

aye

aye

aye

no

no

no

whether Mr Wilson’s motion respecting the election of the Executive be in order.

That ye Legislatures of ye several States shall ballot in ye in ye following proportions for ye supreme Executive, & a Majority of votes shall determine the Election, but in case there shall not be a Majority, the four persons having ye Edition: current; Page: [99] highest votes shall be candidates for ye office, & out of these the first Branch shall elect two, & the second Branch shall determine which of ye two so elected shall be chief Magistrate

The Executive shall be chosen every years by Electors to be taken by lot from the national legislature — the electors to proceed immediately to the choice of the Executive and not to separate until it be made —

Suppose the whole to consist of 90 —

65

25

90

then put in 90 balls — of which as many as the proposed number of electors shall be gilded — those who draw these balls to be Electors

MADISON Tuesday July 24. in Convention

The appointment of the Executive by Electors reconsidered.

Mr. Houston moved that he be appointed by the “Natl. Legislature. 〈instead of “Electors appointed by the State Legislatures” according to the last decision of the mode〉4 He dwelt chiefly on the improbability, that capable men would undertake the service of Electors from the more distant States.

Mr. Spaight seconded the motion.

Edition: current; Page: [100]

Mr. Gerry opposed it. He thought there was no ground to apprehend the danger urged by Mr. Houston. The election of the Executive Magistrate will be considered as of vast importance and will create great earnestness. The best men, the Governours of the States will not hold it derogatory from their character to be the electors. If the motion should be agreed to, it will be necessary to make the Executive ineligible a 2d. time, in order to render him independent of the Legislature; which was an idea extremely repugnant to his way of thinking.

Mr. Strong supposed that there would be no necessity, if the Executive should be appointed by the Legislature, to make him ineligible a 2d. time; as new elections of the Legislature will have intervened; and he will not depend for his 2d. appointment on the same sett of men as his first was recd. from. It had been suggested that gratitude for his past appointment wd. produce the same effect as dependence for his future appointment. He thought very differently. Besides this objection would lie agst. the Electors who would be objects of gratitude as well as the Legislature. It was of great importance not to make the Govt. too complex which would be the case if a new sett of men like the Electors should be introduced into it. He thought also that the first characters in the States would not feel sufficient motives to undertake the office of Electors.

Mr. Williamson was for going back to the original ground; to elect the Executive for 7 years and render him ineligible a 2d. time. The proposed Electors would certainly not be men of the 1st. nor even of the 2d. grade in the States. These would all prefer a seat either in the Senate or the other branch of the Legislature. He did not like the Unity in the Executive. He had wished the Executive power to be lodged in three men taken from three districts into which the States should be divided. As the Executive is to have a kind of veto on the laws, and there is an essential difference of interests between the N. & S. States, particularly in the carrying trade, the power will be dangerous, if the Executive is to be taken from part of the Union, to the part from which he is Edition: current; Page: [101] not taken. The case is different here from what it is in England; where there is a sameness of interest throughout the Kingdom. Another objection agst. a single Magistrate is that he will be an elective King, and will feel the spirit of one. He will spare no pains to keep himself in for life, and will then lay a train for the succession of his children. It was pretty certain he thought that we should at some time or other have a King; but he wished no precaution to be omitted that might postpone the event as long as possible. — Ineligibility a 2d. time appeared to him to be the best precaution. With this precaution he had no objection to a longer term than 7 years. He would go as far as 10 or 12 years.

Mr. Gerry moved that the Legislatures of the States should vote by ballot for the Executive in the same proportions as it had been proposed they should chuse electors; and that in case a majority of the votes should 〈not〉 center on the same person, the 1st. branch of the Natl. Legislature should chuse two out of the 4 candidates having most votes, and out of these two, the 2d. branch should chuse the Executive.5

Mr. King seconded the motion — and on the Question to postpone in order to take it into consideration, The noes were so predominant that the States were not counted.

Question on Mr. Houston’s motion that the Executive be appd. by Nal. Legislature

Mr. L. Martin & Mr. Gerry moved to reinstate the ineligibility of the Executive a 2d. time.6

Mr. Elseworth. With many this appears a natural consequence of his being elected by the Legislature. It was not the case with him. The Executive he thought should be reelected if his conduct proved him worthy of it. And he will be more likely to render him〈self〉 worthy of it if he be rewardable with it. The most eminent characters also will be more willing to accept the trust under this condition, than if they foresee a necessary degradation at a fixt period.

Edition: current; Page: [102]

Mr. Gerry. That the Executive shd. be independent of the Legislature is a clear point. The longer the duration of his appointment the more will his dependence be diminished — It will be better then for him to continue 10, 15, or even 20 — years and be ineligible afterwards.

Mr. King was for making him re-eligible. This is too great an advantage to be given up for the small effect it will have on his dependence, if impeachments are to lie. He considered these as rendering the tenure during pleasure.

Mr. L. Martin, suspending his motion as to the ineligibility, moved “that the appointmt. of the Executive shall continue for Eleven years.

Mr. Wilson. The difficulties & perplexities into which the House is thrown proceed from the election by the Legislature which he was sorry had been reinstated. The inconveniency of this mode was such that he would agree to almost any length of time in order to get rid of the dependence which must result from it. He was persuaded that the longest term would not be equivalent to a proper mode of election, unless indeed it should be during good behaviour. It seemed to be supposed that at a certain advance of life, a continuance in office would cease to be agreeable to to the officer, as well as desireable to the public. Experience had shewn in a variety of instances that both a capacity & inclination for public service existed — in very advanced stages. He mentioned the instance of a Doge of Venice who was elected after he was 80 years of age. The popes have generally been elected at very advanced periods, and yet in no case had a more steady or a better concerted policy been pursued than in the Court of Rome. If the Executive should come into office at 35. years of age, which he presumes may happen & his continuance should be fixt at 15 years. at the age of 50. in the very prime of life, and with all the aid of experience, he must be Edition: current; Page: [103] cast aside like a useless hulk. What an irreparable loss would the British Jurisprudence have sustained, had the age of 50. been fixt there as the ultimate limit of capacity or readiness to serve the public. The great luminary (Ld. Mansfield) held his seat for thirty years after his arrival at that age. Notwithstanding what had been done he could not but hope that a better mode of election would yet be adopted; and one that would be more agreeable to the general sense of the House. That time might be given for further deliberation he wd. move that the present question be postponed till to-morrow.

Mr Broom seconded the motion to postpone.

Mr. Gerry. We seem to be entirely at a loss on this head. He would suggest whether it would not be advisable to refer the clause relating to the Executive to the Committee of detail to be appointed. Perhaps they will be able to hit on something that may unite the various opinions which have been thrown out.

Mr. Wilson. As the great difficulty seems to spring from the mode of election, he wd. suggest a mode which had not been mentioned. It was that the Executive be elected for 6 years by a small number, not more than 15 of the Natl Legislature, to be drawn from it, not by ballot, but by lot and who should retire immediately and make the election 〈without separating〉.7 By this mode intrigue would be avoided in the first instance, and the dependence would be diminished. This was not he said a digested idea and might be liable to strong objections.

Mr. Govr. Morris. Of all possible modes of appointment that by the Legislature is the worst. If the Legislature is to appoint, and to impeach or to influence the impeachment, the Executive will be the mere creature of it. He had been opposed to the impeachment, but was now convinced that impeachments must be provided for, if the appt. was to be of any duration. No man wd. say, that an Executive known to be in the pay of an Enemy, should not be removable in Edition: current; Page: [104] some way or other. He had been charged heretofore (by Col. Mason) with inconsistency in pleading for confidence in the Legislature on some occasions, & urging a distrust on others. The charge was not well founded. The Legislature is worthy of unbounded confidence in some respects, and liable to equal distrust in others. When their interest coincides precisely with that of their Constituents, as happens in many of their Acts, no abuse of trust is to be apprehended. When a strong personal interest happens to be opposed to the general interest, the Legislature can not be too much distrusted. In all public bodies there are two parties. The Executive will necessarily be more connected with one than with the other. There will be a personal interest therefore in one of the parties to oppose as well as in the other to support him. Much had been said of the intrigues that will be practiced by the Executive to get into office. Nothing had been said on the other side of the intrigues to get him out of office. Some leader of party will always covet his seat, will perplex his administration, will cabal with the Legislature, till he succeeds in supplanting him. This was the way in which the King of England was got out, he meant the real King, the Minister. This was the way in which Pitt (Ld. Chatham) forced himself into place. Fox was for pushing the matter still farther. If he had carried his India bill, which he was very near doing, he would have made the Minister, the King in form almost as well as in substance. Our President will be the British Minister, yet we are about to make him appointable by the Legislature. Something had been said of the danger of Monarchy — If a good government should not now be formed, if a good organization of the Execuve should not be provided, he doubted whether we should not have something worse than a limited Monarchy. In order to get rid of the dependence of the Executive on the Legislature, the expedient of making him ineligible a 2d. time had been devised. This was as much as to say we shd. give him the benefit of experience, and then deprive ourselves of the use of it. But make him ineligible a 2d. time-and prolong his duration even to 15-years, will he by any wonderful interposition of providence at that period Edition: current; Page: [105] cease to be a man? No he will be unwilling to quit his exaltation, the road to his object thro’ the Constitution will be shut; he will be in possession of the sword, a civil war will ensue, and the Commander of the victorious army on which ever side, will be the despot of America. This consideration renders him particularly anxious that the Executive should be properly constituted. The vice here would not, as in some other parts of the system be curable- It is 〈the〉 most difficult of all rightly to balance the Executive. Make him too weak: The Legislature will usurp his powers: Make him too strong. He will usurp on the Legislature. He preferred a short period, a re-eligibility, but a different mode of election. A long period would prevent an adoption of the plan: it ought to do so. He shd. himself be afraid to trust it. He was not prepared to decide on Mr. Wilson’s mode of election just hinted by him. He thought it deserved consideration. It would be better that chance sd. decide than intrigue.

〈On A question to postpone the consideration of the Resolution on the subject of the Executive〉8

Mr. Wilson 〈then〉 moved9 that the Executive be chosen every years by Electors to be taken by lot from the Natl Legislature who shall proceed immediately to the choice of the Executive 〈and not separate until it be made〉”10

Mr. Carrol 2ds. the motion

Mr Gerry. this is committing too much to chance. If the lot should fall on a sett of unworthy men, an unworthy Executive must be saddled on the Country. He thought it had been demonstrated that no possible mode of electing by the Legislature could be a good one.

Mr. King — The lot might fall on a majority from the same State which wd. ensure the election of a man from that State. Edition: current; Page: [106] We ought to be governed by reason, not by chance. As no body seemed to be satisfied, he wished the matter to be postponed

Mr. Wilson did not move this as the best mode. His opinion remained unshaken that we ought to resort to the people for the election. He seconded the postponement.

Mr. Govr. Morris observed that the chances were almost infinite agst. a majority of electors from the same State.

〈On a question whether the last motion was in order, it was determined in the affirmative; 7. ays. 4 noes.〉11

On the question of postponemt. it was agreed to nem. con.

Mr Carrol took occasion to observe that he considered the clause declaring that direct taxation on the States should be in proportion to representation, previous to the obtaining an actual census, as very objectionable, and that he reserved to himself the right of opposing it, if the Report of the Committee of detail should leave it in the plan.

Mr. Govr. Morris hoped the Committee would strike out the whole of the clause proportioning direct taxation to representation. He had only meant it as a* bridge to assist us over a certain gulph; having passed the gulph the bridge may be removed. He thought the principle laid down with so much strictness, liable to strong objections

On a ballot for a Committee to report a Constitution conformable to the Resolutions passed by the Convention, the members chosen were

〈On motion to discharge the Come. of the whole from the propositions submitted to the Convention by Mr. C. Pinkney as the basis of a constitution, and to refer them to the Committee of detail just appointed. it was agd. to nem. con.

A like motion then made & agreed to nem: con: with respect to the propositions of Mr Patterson

WEDNESDAY, JULY 25, 1787.

JOURNAL Wednesday July 25. 1787.

It was moved and seconded to agree to the following amendment to the resolution respecting the election of the supreme Executive namely

“except when the Magistrate last chosen shall have continued in office the whole term for which he was chosen, and be reeligible in which case the choice shall be by Electors appointed for that purpose by the several Legislatures”

[That the members of the Committee be furnished with copies of the proceedings Ayes — 10; noes — 1.3

That the members of the House take copies of the resolutions which have been agreed to Ayes — 5; noes — 6.4]

It was moved and seconded to refer the resolution respecting Edition: current; Page: [108] the Executive (except that clause which provides that it consist of a single Person) to the Committee of detail.

Before a determination was taken on the last motion [To adjourn Ayes — 9; noes — 2.]5 The House adjourned till to-morrow at 11 o’Clock A. M.

DETAIL OF AYES AND NOES

New Hampshire

Massachusetts

Rhode Island

Connecticut

New York

New Jersey

Pennsylvania

Delaware

Maryland

Virginia

North Carolina

South Carolina

Georgia

Questions

Ayes

Noes

Divided

[218]

aye

no

aye

no

aye

no

aye

no

no

no

no

To agree to Mr Elsworth’s amendment in the election of the Executive.

4

7

[219]

no

no

aye

aye

aye

no

aye

aye

no

no

no

To postpone Mr Pinckney’s amendment

5

6

[220]

aye

aye

no

no

no

no

no

no

aye

aye

aye

To agree to Mr Pinckney’s amendment

5

6

[221]

aye

aye

aye

aye

aye

aye

aye

aye

aye

no

aye

That the Members of the Committee be furnished with copies of the proceedings

10

1

[222]

no

no

aye

aye

no

aye

no

aye

aye

no

no

That the Members of the House take copies of the resolutions which have been agreed to

5

6

[223]

no

aye

no

aye

aye

aye

aye

aye

aye

aye

aye

To adjourn

MADISON Wednesday July 25. In Convention

Clause relating to the Executive again under consideration

Mr. Elseworth moved “that the Executive be appointed by the Legislature,” except when 〈the magistrate last chosen shall〉 have 〈continued in office the whole term for which he was chosen, & be reeligible, in which case the choice shall be〉 by -Electors appointed by the Legislatures of the States 〈for that Edition: current; Page: [109] purpose.”〉6 By this means a deserving Magistrate may be reelected without making him dependent on the Legislature.

Mr. Gerry repeated his remark that an election at all by the Natl. Legislature was radically and incurably wrong; and moved7 that the Executive be appointed by the Governours & Presidents of the States, with advice of their Councils, and when there are no Councils by Electors chosen by the Legislatures. The executives to vote in the following proportions: 〈viz —〉

Mr. 〈Madison.〉 There are objections agst. every mode that has been, or perhaps can be proposed. The election must be made either by some existing authority under the Natil. or State Constitutions — or by some special authority derived from the people — or by the people themselves. — The two Existing authorities under the Natl. Constitution wd be the Legislative & Judiciary. The latter he presumed was out of the question. The former was in his Judgment liable to insuperable objections. Besides the general influence of that mode on the independence of the Executive, 1. the election of the Chief Magistrate would agitate & divide the legislature so much that the public interest would materially suffer by it. Public bodies are always apt to be thrown into contentions, but into more violent ones by such occasions than by any others. 2. the candidate would intrigue with the Legislature, would derive his appointment from the predominant faction, and be apt to render his administration subservient to its views. 3. The Ministers of foreign powers would have and make use of, the opportunity to to mix their intrigues & influence with the Election. Limited as the powers of the Executive are, it will be an object of great moment with the great rival powers of Europe who have American possessions, to have at the head of our Governmt. a man attached to their respective politics & interests. No pains, nor perhaps expence, will be spared, to gain from the Legislature an appointmt. favorable to their wishes. Germany & Poland are witnesses of this danger. In the former, the election of the Head of the Edition: current; Page: [110] Empire, till it became in a manner hereditary, interested all Europe, and was much influenced8 by foreign interference — In the latter, altho’ the elective Magistrate has very little real power, his election has at all times produced the most eager interference of forign princes, and has in fact at length slid entirely into foreign hands. The existing authorities in the States are the Legislative, Executive & Judiciary. The appointment of the Natl Executive by the first was objectionable in many points 〈of view〉, some of which had been already mentioned. He would mention one which of itself would decide his opinion. The Legislatures of the States had betrayed a strong propensity to a variety of pernicious measures.9 One object of the Natl. Legislre. was to controul this propensity. One object of the Natl. Executive, so far as it would have a negative on the laws, was to controul the Natl. Legislature, so far as it might be infected with a similar propensity. Refer the appointmt of the Natl. Executive to the State Legislatures, and this controuling purpose may be defeated. The Legislatures can & will act with some kind of regular plan, and will promote the appointmt. of a man who will not oppose himself to a favorite object. Should a majority of the Legislatures at the time of election have the same object, or different objects of the same kind, the Natl Executive, would be rendered subservient to them. — An appointment by the State Executives, was liable among other objections to this insuperable one, that being standing bodies, they could & would be courted, and intrigued with by the Candidates, by their partizans, and by the Ministers of foreign powers. The State Judiciarys had not & he presumed wd. not be proposed as a proper source of appointment. The Option before us then lay between an appointment by Electors chosen by the people — and an immediate appointment by the people. He thought the former mode free from many of the objections which had been urged agst. it, and greatly preferable to an appointment by the Natl. Legislature. As the electors would be chosen for the occasion, would meet at once, & proceed immediately Edition: current; Page: [111] to an appointment, there would be very little opportunity for cabal, or corruption,. As a further precaution, it might be required that they should meet at some place, distinct from the seat of Govt. and even that no person within a certain distance of the place at the time shd. be eligible. This mode however had been rejected so recently & by so great a majority that it probably would not be proposed anew. The remaining mode was an election by the people or rather by the 〈qualified part of them.〉10 at large. With all its imperfections he liked this best. He would not repeat either the general argumts. for or the objections agst this mode. He would only take notice of two difficulties which he admitted to have weight. The first arose from the disposition in the people to prefer a Citizen of their own State, and the disadvantage this wd. throw on the smaller States. Great as this objection might be he did not think it equal to such as lay agst. every other mode which had been proposed. He thought too that some expedient might be hit upon that would obviate it. The second difficulty arose from the disproportion of 〈qualified voters〉10 in the N. & S. States, and the disadvantages which this mode would throw on the latter. The answer to this objection was 1. that this disproportion would be continually decreasing under the influence of the Republican laws introduced in the S. States, and the more rapid increase of their population. 2. That local local considerations must give way to the general interest. As an individual from the S. States he was willing to make the sacrifice.

Mr. Elseworth. The objection drawn from the different sizes of the States, is unanswerable. The Citizens of the largest States would invariably prefer the Candidate within the State; and the largest States wd. invariably have the man.

Mr. Pinkney moved that the election by the Legislature Edition: current; Page: [112] be qualified with a proviso that no person be eligible for more than 6 years in any twelve years. He thought this would have all the advantage & at the same time avoid in some degree the inconveniency, of an absolute ineligibility a 2d. time.

Col. Mason approved the idea. It had the sanction of experience in the instance of Congs. and some of the Executives of the States. It rendered the Executive as effectually independent, as an ineligibility after his first election, and opened the way at the same time for the advantage of his future services. He preferred on the whole the election by the Natl. Legislature: Tho’ Candor obliged him to admit, that there was great danger of foreign influence, as had been suggested. This was the most serious objection with him that had been urged.

Mr Butler. The two great evils to be avoided are cabal at home, & influence from abroad. It will be difficult to avoid either if the Election be made by the Natl Legislature. On the other hand, the Govt. should not be made so complex & unwieldy as to disgust the States. This would be the case, if the election shd. be referred to the people. He liked best an election by Electors chosen by the Legislatures of the States. He was agst. a re-eligibility at all events. He was also agst. a ratio of votes in the States. An equality should prevail in this case. The reasons for departing from it do not hold in the case of the Executive as in that of the Legislature.

Mr. Gerry approved of Mr Pinkney’s motion as lessening the evil.

Mr Govr. Morris was agst. a rotation in every case. It formed a political School, in wch. we were always governed by the scholars, and not by the Masters — The evils to be guarded agst in this case are. 1. the undue influence of the Legislature. 2. instability of Councils. 3. misconduct in office. To guard agst. the first, we run into the second evil. we adopt a rotation which produces instability of Councils. To avoid Sylla we fall into Charibdis. A change of men is ever followed by a change of measures We see this fully exemplified in the vicissitudes among ourselves, particularly in Edition: current; Page: [113] the State of Pena. The selfsufficiency of a victorious party scorns to tread in the paths of their predecessors. Rehoboam will not imitate Solomon. 2. the Rotation in office will not prevent intrigue and dependence on the Legislature. The man in office will look forward to the period at which he will become re-eligible. The distance of the period, the improbability of such a protraction of his life will be no obstacle. Such is the nature of man, formed by his benevolent author no doubt for wise ends, that altho’ he knows his existence to be limited to a span, he takes his measures as if he were to live forever. But taking another supposition, the inefficacy of the expedient will be manifest. If the magistrate does not look forward to his re-election to the Executive, he will be pretty sure to keep in view the opportunity of his going into the Legislature itself. He will have little objection then to an extension of power on a theatre where he expects to act a distinguished part; and will be very unwilling to take any step that may endanger his popularity with the Legislature, on his influence over which the figure he is to make will depend. 3. To avoid the third evil, impeachments will be essential, and hence an additional reason agst an election by the Legislature. He considered an election by the people as the best, by the Legislature as the worst, mode. Putting both these aside, he could not but favor the idea of Mr. Wilson, of introducing a mixture of lot. It will diminish, if not destroy both cabal & dependence.

Mr. Williamson was sensible that strong objections lay agst an election of the Executive by the Legislature, and that it opened a door for foreign influence. The principal objection agst. an election by the people seemed to be, the disadvantage under which it would place the smaller States. He suggested as a cure for this difficulty, that each man should vote for 3 candidates. One of these he observed would be probably of his own State, the other 2. of some other States; and as probably of a small as a large one.

Mr. Govr. Morris liked the idea, suggesting as an amendment that each man should vote for two persons one of whom at least should not be of his own State.

Edition: current; Page: [114]

Mr 〈Madison〉 also thought something valuable might be made of the suggestion with the proposed amendment of it. The second best man11 in this case would probably be the first, in fact. The only objection which occurred was that each Citizen after havg. given his vote for his favorite fellow Citizen wd. throw away his second on some obscure Citizen of another State, in order to ensure the object of his first choice. But it could hardly be supposed that the Citizens of many States would be so sanguine of having their favorite elected, as not to give their second vote with sincerity to the next object of their choice. It12 might moreover be provided in favor of the smaller States that the Executive should not be eligible more than times in years from the same State.

Mr. Gerry — A popular election in this case is radically vicious. The ignorance of the people would put it in the power of some one set of men dispersed through the Union & acting in Concert to delude them into any appointment. He observed that such a Society of men existed in the Order of the Cincinnati. They were respectable, United, and influencial. They will in fact elect the chief Magistrate in every instance, if the election be referred to the people. — His respect for the characters composing this Society could not blind him to the danger & impropriety of throwing such a power into their hands.

Mr. Dickenson. As far as he could judge from the discussion which had taken place during his attendance, insuperable objections lay agst an election of the Executive by the Natl. Legislature; as also by the Legislatures or Executives of the States — He had long leaned towards an election by the people which he regarded as the best and purest source. Objections he was aware lay agst this mode, but not so great he thought as agst the other modes. The greatest difficulty in the opinion of the House seemed to arise from the partiality of the States to their respective Citizens. But, might not this very partiality be turned to a useful purpose. Let Edition: current; Page: [115] the people of each State chuse its best Citizen. The people will know the most eminent characters of their own States, and the people of different States will feel an emulation in selecting those of which they will have the greatest reason to be proud — Out of the thirteen names thus selected, an Executive Magistrate may be chosen either by the Natl Legislature, or by Electors appointed by it.

On a Question which was moved for postponing Mr. Pinkney’s motion, in order to make way for some such proposition as had been hinted by Mr. Williamson & others. 〈it passed in the negative.〉

THURSDAY, JULY 26, 1787.

JOURNAL Thursday July 26. 1787.

It was moved and seconded to amend the third clause of the resolution respecting the national executive so as to read as follows, namely

“for the term of seven years to be ineligible a second time”

which passed in the affirmative [Ayes — 7; noes — 3.]

On the question to agree to the whole resolution respecting the supreme Executive namely.

Resolved That a national Executive be instituted

to consist of a Single Person

to be chosen by the national Legislature

for the term of seven years

to be ineligible a second time

with power to carry into execution the national Laws

to appoint to Offices in cases not otherwise provided for.

to be removable on impeachment and conviction of malpractice or neglect of duty.

to receive a fixed compensation for the devotion of his time to public service

to be paid out of the public Treasury.

it passed in the affirmative. [Ayes — 6; noes — 3; divided — 1.]

It was moved and seconded to agree to the following Resolution namely.

Resolved That it be an instruction to the Committee to whom were referred the proceedings of the Convention for the establishment of a national government, to receive a clause or clauses, requiring certain qualifications of landed property Edition: current; Page: [117] and citizenship in the United States for the Executive, the Judiciary, and the Members of both branches of the Legislature of the United States; and for disqualifying all such persons as are indebted to, or have unsettled accounts with the United States from being Members of either Branch of the national Legislature.

It was moved and seconded to strike out the word “landed”

it passed in the affirmative [Ayes — 10; noes — 1.]

On the question to agree to the clause respecting the qualification as amended

it passed in the affirmative [Ayes — 8; noes — 3.]

It was moved and seconded to add the words “and Pensioners of the Government of the United States” to the clause of disqualification

which passed in the negative. [Ayes —3; noes — 7; divided — 1.]

It was moved and seconded to strike out the following words, namely

“or have unsettled accounts with”

which passed in the affirmative. [Ayes — 9; noes — 2.]

On the question to agree to the clause of disqualification as amended

it passed in the negative [Ayes — 2; noes — 9.]

It was moved and seconded to agree to the following resolution namely

Resolved that it be an instruction to the Committee to whom were referred the proceedings of the Convention for the establishment of a national Government, to receive a clause or clauses for preventing the seat of the national Government being in the same City or Town with the seat of the Government of any State, longer than until the necessary public Buildings can be erected.

It was moved and seconded to postpone the consideration of the last resolution.

It was moved and seconded to refer such proceedings of the Convention, as have been agreed on since Monday last, to the Committee of detail

for the term of “seven years” “to be ineligible a second time.” (supreme Executive)

7

3

[225]

aye

aye

aye

no

no

no

dd

aye

aye

aye

To agree to the whole resolution respecting the supreme Executive

6

3

1

[226]

aye

aye

aye

aye

aye

aye

no

aye

aye

aye

aye

To strike out the word “landed” in the qualification

10

1

[227]

aye

aye

no

aye

no

no

aye

aye

aye

aye

aye

To agree to the clause of qualification

8

3

[228]

no

aye

no

no

no

no

aye

no

dd

no

aye

To agree to the amendment for disqualification officers under the government and Pensioners.

3

7

1

[229]

aye

aye

aye

no

aye

aye

aye

aye

aye

aye

no

To strike out the words or have unsettled accounts with

9

2

[230]

no

no

no

no

no

no

no

no

aye

no

aye

To agree to the clause of disqualification

2

9

[231]

aye

aye

aye

aye

aye

aye

aye

aye

aye

aye

aye

To adjourn till monday August

End of seventh loose sheet]

MADISON Thursday July. 2〈6〉 in Convention

Col. Mason. In every Stage of the Question relative to the Executive, the difficulty of the subject and the diversity of the opinions concerning it have appeared. Nor have any of the modes of constituting that department been satisfactory. Edition: current; Page: [119] 1. It has been proposed that the election should be made by the people at large; that is that an act which ought to be performed by those who know most of Eminent characters, & qualifications, should be performed by those who know least. 2 that the election should be made by the Legislatures of the States. 3. by the Executives of the States. Agst these modes also strong objections have been urged. 4. It has been proposed that the election should be made by Electors chosen by the people for that purpose. This was at first agreed to: But on further consideration has been rejected. 5. Since which, the mode of Mr Williamson, requiring each freeholder to vote for several candidates has been proposed. This seemed like many other propositions, to carry a plausible face, but on closer inspection is liable to fatal objections. A popular election 〈in any form〉, as Mr. Gerry has observed, would throw the appointment into the hands of the Cincinnati, a Society for the members of which he had a great respect; but which he never wished to have a preponderating influence in the Govt. 6. Another expedient was proposed by Mr. Dickenson, which is liable to so palpable & material an inconvenience that he had little 〈doubt〉 of its being by this time rejected by himself. It would exclude every man who happened not to be popular within his own State; tho’ the causes of his local unpopularity might be of such a nature as to recommend him to the States at large. 7. Among other expedients, a lottery has been introduced. But as the tickets do not appear to be in much demand, it will probably, not be carried on, and nothing therefore need be said on that subject. After reviewing all these various modes, he was led to conclude- that an election by the Natl Legislature as originally proposed, was the best. If it was liable to objections, it was liable to fewer than any other. He conceived at the same time that a second election ought to be absolutely prohibited. Having for his primary object, for the pole star of his political conduct, the preservation of the rights of the people, he held it as an essential point, as the very palladium of Civil liberty, that the great officers of State, and particularly the Executive should at fixed periods return Edition: current; Page: [120] to that mass from which they were at first taken, in order that they may feel & respect those rights & interests, Which are again to be personally valuable to them. He concluded with moving that the constitution of the Executive as reported by the Come. of the whole be re-instated, viz. “that the Executive be appointed for seven years, & be ineligible a 2d. time,”

Mr. Davie seconded the motion

Docr. Franklin. It seems to have been imagined by some that the returning to the mass of the people was degrading the magistrate. This he thought was contrary to republican principles. In free Governments the rulers are the servants, and the people their superiors & sovereigns. For the former therefore to return among the latter was not to degrade but to promote them- and it would be imposing an unreasonable burden on them, to keep them always in a State of servitude, and not allow them to become again one of the Masters.

Question on Col. Masons motion as above; 〈which passed in the affirmative〉

Mr. Govr. Morris was now agst. the whole paragraph. In answer to Col. Mason’s position that a periodical return of the great officers of the State into the mass of the people, was the palladium of Civil liberty he wd. observe that on the same principle the Judiciary ought to be periodically degraded; certain it was that the Legislature ought on every principle-yet no one had proposed. or conceived that the members of it should not be re-eligible. In answer to Docr. Franklin, that a return into the mass of the people would be a promotion. instead of a degradation, he had no doubt that our Executive like most others would have too much patriotism to shrink from the burden of his office, and too much modesty not to be willing to decline the promotion.

〈On the question on the whole resolution as amended in the words following2 — “that a National Executive be Edition: current; Page: [121] instituted — to consist of a single person — to be chosen by the Natl. legislature — for the term of seven years — to be ineligible a 2d. time — with power to carry into execution the natl. laws — to appoint to offices in cases not otherwise provided for — to be removeable on impeachment & conviction of mal-practice or neglect of duty — to receive a fixt compensation for the devotion of his time to the public service, to be paid out of the Natl. Treasury” — it passed in the affirmative3〉

Mr Mason moved “that the Committee of detail be instructed to receive a clause requiring certain qualifications of landed property & citizenship 〈of the U. States〉 in members of the Legislature,4 and disqualifying persons having unsettled Accts. with or being indebted to the U. S. 〈from being members of the Natl. Legislature”〉5 — He observed that persons of the latter descriptions had frequently got into the State Legislatures, in order to promote laws that might shelter their delinquencies; and that this evil had crept into Congs. if Report was to be regarded.

Mr Pinckney seconded the motion

Mr Govr. Morris. If qualifications are proper, he wd. prefer them in the electors rather than the elected. As to debtors of the U. S. they are but few. As to persons having unsettled accounts he believed them to be pretty many. He thought however that such a discrimination would be both odious & useless. and in many instances unjust & cruel. The delay of settlemt. had been more the fault of the public than of the individuals. What will be done with those patriotic Citizens who have lent money, or services or property to their Country, without having been yet able to obtain a liquidation of their claims? Are they to be excluded?

Edition: current; Page: [122]

Mr. Ghorum was for leaving to the Legislature, the providing agst such abuses as had been mentioned.

Col. Mason mentioned the parliamentary qualifications adopted in the Reign of Queen Anne, which he said had met with universal approbation

Mr. 〈Madison〉 had witnessed6 the zeal of men having accts. with the public, to get into the Legislatures for sinister purposes. He thought however that if any precaution were to be taken for excluding them, the one proposed by Col. M〈ason〉 ought to be new modelled. It might be well to limit7 the exclusion to persons who had recd money from the public, and had not accounted for it.

Mr Govr. Morris — It was a precept of great antiquity as well as of high authority that we should not be righteous overmuch. He thought we ought to be equally on our guard agst. being wise over much. The proposed regulation would enable the Govent. to exclude particular persons from office as long as they pleased He mentioned the case of the Commander in chief’s presenting his account for secret services, which he said was so moderate that every one was astonished at it; and so simple that no doubt could arise on it. Yet had the Auditor been disposed to delay the settlement, how easily might he have affected it, and how cruel wd. it be in such a case to keep a distinguished & meritorious Citizen under a temporary disability & disfranchisement. He mentioned this case merely to illustrate the objectionable nature of the proposition. He was opposed to such minutious regulations in a Constitution. The parliamentary qualifications quoted by Col. Mason, had been disregarded in practice; and was but a scheme of the landed agst the monied interest.

Mr Pinckney & Genl. Pinckney moved to insert by way of amendmt. the words Judiciary & Executive so as to extend the qualifications to those departments which was agreed to nem con

Mr. Gerry thought the inconveniency of excluding a few worthy individuals who might be public debtors or have unsettled accts ought not to be put in the Scale agst the public Edition: current; Page: [123] advantages of the regulation, and that the motion did not go far enough.

Mr. King observed that there might be great danger in requiring landed property as a qualification since it would exclude the monied interest, whose aids may be essential in particular emergencies to the public safety.8

Mr. Dickenson. was agst. any recital of qualifications in the Constitution. It was impossible to make a compleat one, and a partial one would by implication tie up the hands of the Legislature from supplying the omissions, The best defence lay in the freeholders who were to elect the Legislature. Whilst this Source should remain pure, the public interest would be safe. If it ever should be corrupt, no little expedients would repel the danger. He doubted the policy of interweaving into a Republican constitution a veneration for wealth. He had always understood that a veneration for poverty & virtue, were the objects of republican encouragement. It seemed improper that any man of merit should be subjected to disabilities in a Republic where merit was understood to form the great title to public trust, honors & rewards.

Mr Gerry if property be one object of Government, provisions for securing it can not be improper.

Mr. 〈Madison〉 moved to strike out the word landed, before the word, “qualifications”. If the proposition sd. be agreed to he wished the Committee to be at liberty to report the best criterion they could devise. Landed possessions were no certain evidence of real wealth. Many enjoyed them to a great extent who were more in debt than they were worth. The unjust laws of the States had proceeded more from this class of men, than any others. It had often happened that men who had acquired landed property on credit, got into the Legislatures with a view of promoting an unjust protection agst. their Creditors. In the next place, if a small quantity of land should be made the standard. it would be no security, — if a large one, it would exclude the proper representatives of those classes of Citizens who were not landholders. It Edition: current; Page: [124] was politic as well as just that the interests & rights of every class should be duly represented & understood in the public Councils. It was a provision every where established that the Country should be divided into districts & representatives taken from each, in order that the Legislative Assembly might equally understand & sympathise, with the rights of the people in every part of the Community. It was not less proper that every class of Citizens should have an opportunity of making their rights be felt & understood in the public Councils. The three principle classes into which our citizens were divisible, were the landed the commercial, & the manufacturing. The 2d. & 3rd. class, bear as yet a small proportion to the first. The proportion however will daily increase. We see in the populous Countries in Europe now, what we shall be hereafter. These classes understand much less of each others interests & affairs, than men of the same class inhabiting different districts. It is particularly requisite therefore that the interests of one or two of them should not be left entirely to the care, or the impartiality of the third. This must be the case if landed qualifications should be required; few of the mercantile, and scarcely any of the manufacturing class, chusing whilst they continue in business to turn any part of their Stock into landed property. For these reasons he wished if it were possible that some other criterion than the mere possession of land should be devised. He concurred with Mr. Govr. Morris in thinking that qualifications in the Electors would be much more effectual than in the elected. The former would discriminate between real & ostensible property in the latter; But he was aware of 〈the difficulty of〉 forming any uniform standard that would suit the different circumstances & opinions prevailing in the different States.

“The 2d. part, for disqualifying debtors, and persons having unsettled accounts”, being under consideration

Mr. Carrol moved to strike out “having unsettled accounts”

Mr. Ghorum seconded the motion; observing that it would put the commercial & manufacturing part of the people on a worse footing than others as they would be most likely to have dealings with the public.

Mr. L- Martin. if these words should be struck out, and the remaining words concerning debtors retained, it will be the interest of the latter class to keep their accounts unsettled as long as possible.

Mr. Wilson was for striking them out. They put too much power in the hands of the Auditors, who might combine with rivals in delaying settlements in order to prolong the disqualifications of particular men. We should consider that we are providing a Constitution for future generations, and not merely for the peculiar circumstances of the moment. The time has been, and will again be when the public safety may depend on the voluntary aids of individuals which will necessarily open accts. with the public, and when such accts. will be a characteristic of patriotism. Besides a partial enumeration of cases will disable the Legislature from disqualifying odious & dangerous characters.

Mr. Langdon was for striking out the whole clause for the reasons given by Mr Wilson. So many Exclusions he thought too would render the system unacceptable to the people.

Mr. Gerry. If the argumts. used to day were to prevail, we might have a Legislature composed of public debtors, pensioners, placemen & contractors. He thought the proposed qualifications would be pleasing to the people. They will be considered as a security agst unnecessary or undue burdens being imposed on them 〈He moved to add “pensioners” to the disqualified characters which was negatived.

Mr. Govr. Morris The last clause, relating to public debtors will exclude every importing merchant. Revenue will be drawn it is foreseen as much as possible, from trade. Duties of course will be bonded. and the Merchts. will remain debtors to the public. He repeated that it had not been so much the fault of individuals as of the public that transactions between them had not been more generally liquidated & adjusted. At all events to draw from our short & scanty experience rules that are to operate through succeeding ages, does not savour much of real wisdom.

On question for striking out “persons having unsettled accounts with the U. States.”

Mr. Elseworth was for disagreeing to the remainder of the clause disqualifying public debtors; and for leaving to the wisdom of the Legislature and the virtue of the Citizens, the task of providing agst. such evils. Is the smallest as well largest debtor to be excluded? Then every arrear of taxes will disqualify. Besides how is it to be known to the people when they elect who are or are not public debtors. The exclusion of pensioners & placemen in Engd is founded on a consideration not existing here. As persons of that sort are dependent on the Crown, they tend to increase its influence.

Mr. Pinkney sd. he was at first a friend to the proposition, for the sake of the clause relating to qualifications of property; but he disliked the exclusion of public debtors; it went too far. It wd. exclude persons who had purchased confiscated property or should purchase Western territory of the public, and might be some obstacle to the sale of the latter.

On the question for agreeing to the clause disqualifying public debtors

Col. Mason. observed that it would be proper, as he thought, that some provision should be made in the Constitution agst. choosing for the seat of the Genl. Govt. the City or place at which the seat of any State Govt. might be fixt. There were 2 objections agst. having them at the same place, which without mentioning others, required some precaution on the subject. The 1st. was that it tended to produce disputes concerning jurisdiction — The 2d. & principal one was that the intermixture of the two Legislatures tended to give a provincial tincture to ye Natl. deliberations. He moved that the Come. be instructed to receive a clause to prevent the seat of the Natl. Govt. being 〈in the same City or town with〉 the seat of 〈the Govt. of〉 any State 〈longer〉 than untill the necessary public buildings could be erected.11

Mr. Alex. Martin 2ded. the motion.

Mr. Govr. Morris did not dislike the idea, but was apprehensive that such a clause might make enemies of Philda. & N. York which had expectations of becoming the Seat of the Genl. Govt.

Mr. Langdon approved the idea also: but suggisted the case of a State moving its seat of Govt. to the natl. seat after the erection of the public buildings

Mr. Ghorum. the precaution may be evaded by the Natl. Legislre. by delaying to erect the public buildings

Mr. Gerry conceived it to be the genel. sense of America, that neither the Seat of a State Govt. nor any large commercial City should be the seat of the Genl. Govt.

Mr. Williamson liked the idea, but knowing how much the passions of men were agitated by this matter, was apprehensive of turning them agst. the system. He apprehended also that an evasion might be practiced in the way hinted by Mr. Ghorum.

Mr. Pinkney thought the seat of a State Govt. ought to be avoided; but that a large town or its vicinity would be proper for the seat of the Genl. Govt.

Col. Mason did not mean to press the motion at this time, Edition: current; Page: [128] nor to excite any hostile passions agst. the system. He was content to withdraw the motion for the present.

Mr. Butler was for fixing 〈by the Constitution〉 the place, & a central one, 〈for the seat of the Natl Govt〉

The 〈proceedings since monday last were referred unanimously to the〉12 Come. of detail, 〈and the Convention then unamously〉13 Adjourned till Monday. Augst. 6. that 〈the〉 Come. of detail 〈might〉 have time to prepare & report the Constitution:14

〈The whole proceedings as referred are as follow: (here copy them from the Journal p. 207.

With the above resolutions were referred the propositions offered by Mr. C. Pinckney on the 29th of May. & by Mr. Patterson on the 15th. of June.〉13

Edition: current; Page: [none]

Photograph of a Page of Madison’s Manuscript Showing his later Revisions

Edition: current; Page: [129]

COMMITTEE OF DETAIL

[Among the Wilson Papers in the Library of the Historical Society of Pennsylvania are found a number of documents evidently relating to the work of the Committee of Detail. With a few additions from other sources, it is possible to present a nearly complete series of documents representing the various stages of the work of the Committee. All documents obtainable are here given.]

That the Government of the United States ought to consist of a Supreme Legislative, Judiciary and Executive

2.

Resolved

That the Legislature of the United States ought to consist of two Branches

3.

Resolved

That the Members of the first Branch of the Legislature of the United States ought to be elected by the People of the several States — for the Term of two Years — to be of the Age of twenty five Years at least — to be ineligible to and incapable of holding any Office under the Authority of the United States (except those peculiarly belonging to the Functions of the first Branch) during the Time of Service of the first Branch

4.

Resolved

That the Members of the second Branch of the Legislature of the United States ought to be chosen by the Individual Legislatures — to be of the Age of thirty Years at least — to hold their Offices for the Term of six Years; one third to go out biennially — to receive a Compensation for the Devotion of their Time to the public Service — to be ineligible to and incapable of holding any Office under the Authority of the United States (except those peculiarly belonging to the Functions of the second Branch) during the Term for which they are elected, and for one Year thereafter.

5.

Resolved.

That each Branch ought to possess the Right of originating Acts.

6.

Resolved

That the Right of Suffrage in the first Branch of the Legislature of the United States ought not to be according to the Rules established in the Articles of Confederation but according to some equitable Ratio of Representation

7.

Resolved

That in the original Formation of the Legislature of the United States the first Branch thereof shall consist of sixty five Members of which Number New Hampshire shall send three — Massachusetts eight — Rhode Island one — Connecticut five — New. York six — New-Jersey four — Pennsylvania eight — Delaware one — Maryland six — Virginia ten — North. Carolina five — South Carolina five — Georgia three.

But as the present Situation of the States may probably alter in the Number of their Inhabitants, the Legislature of the United States shall be authorised from Time to Time to apportion the Number of Representatives; and in Case any of the States shall hereafter be divided, or enlarged by Addition of Territory, or any two or more States united, or any new States created within the Limits of the United States, the Legislature of the United States shall possess Authority to regulate the Number of Representatives in any of the foregoing Cases, upon the Principle of the Number of their Inhabitants, according to the Provisions herein after mentioned namely — Provided always that Representation ought to be proportioned according to direct Taxation: And in order to ascertain the Alteration in the direct Taxation, which may be required from Time to Time, by the Changes in the relative Circumstances of the States —

Resolved that a Census be taken, within six years from the first Meeting of the Legislature of the United States, and once within the Term of every ten Years afterwards, of all the Inhabitants of the United States in the Manner and according to the Ratio recommended by Congress in their Resolution of April 18th. 1783 — And that the Legislature of the United States shall proportion the direct Taxation accordingly.

Resolved that all Bills for raising or Appropriating Money, and for fixing the Salaries of the Officers of the Government of the United States shall originate in the first Branch of the Legislature of the United States, and shall not be altered or amended by the second Branch; and that no money shall be drawn from the public Treasury but in Pursuance of Appropriations to be originated by the first Branch

Resolved

that from the first Meeting of the Legislature of the United States until a Census shall be taken, all Monies for supplying the public Treasury by direct Taxation shall be raised from the several States according to the Number of their Representatives respectively in the first Branch

8.

Resolved

That in the second Branch of the Legislature of the United States each State shall have an equal Vote.

Resolved

That the Legislature of the United States ought to possess the legislative Rights vested in Congress by the Confederation; and moreover to legislate in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent, or in which the Harmony of the United States may be interrupted by the Exercise of individual Legislation.

Resolved

That the legislative Acts of the United States made by Virtue and in Pursuance of the Articles of Union, and all Treaties made and ratified under the Authority of the United States shall be the supreme Law of the respective States so far as those Acts or Treaties shall relate to the said States, or their Citizens and Inhabitants; and that the Judicatures of the several States shall be bound thereby in their Decisions, any thing in the respective Laws of the individual States to the contrary notwithstanding.

Resolved

That a national Executive be instituted to consist of a single Person — to be chosen for the Term of six Years — with Power to carry into Execution the national Laws — to appoint to Offices in Cases not otherwise provided for — to be removeable on Impeachment and Conviction of mal Practice or Neglect of Duty — to receive a fixed Compensation for the Devotion of his Time to public Service — to be paid out of the public Treasury.

Resolved

That the national Executive shall have a Right to negative any legislative Act, which shall not be afterwards passed, unless by two third Parts of each Branch of the national Legislative.

Resolved

That a national Judiciary be established to consist of one Supreme Tribunal — the Judges of which shall be appointed by the second Branch of the national Legislature — to hold their Offices during good Behaviour — to receive punctually at stated Times a fixed Compensation for their Services, in which no Diminution shall be made so as to affect the Persons actually in Office at the Time of such Diminution

Resolved

That the Jurisdiction of the national Judiciary shall extend to Cases arising under the Laws passed by the general Legislature, and to such other Questions as involve the national Peace and Harmony.

Resolved

That the national Legislature be empowered to appoint inferior Tribunals.

Resolved

That Provision ought to be made for the Admission of States lawfully arising within the Limits of the United States, whether from a voluntary Junction of Government and Territory, or otherwise, with the Consent of a number of Voices in the national Legislature less than the whole.

Resolved

That a Republican Form of Government shall be guarantied to each State; and that each State shall be protected against foreign and domestic Violence.

Resolved

That Provision ought to be made for the Amendment of the Articles of Union, whensoever it shall seem necessary.

Resolved

That the legislative, executive and judiciary Powers, within the several States, and of the national Government, ought to be bound by Oath to support the Articles of Union.

Resolved

That the Amendments which shall be offered to the Confederation by the Convention ought at a proper Time or Times, after the Approbation of Congress, to be submited to an Assembly or Assemblies of Representatives, recommended by the several Legislatures, to be expressly chosen by the People to consider and decide thereon.

Resolved

That the Representation in the second Branch of the Legislature of the United States consist of two Members from each State, who shall vote per capita.

to be removable on impeachment and conviction of malpractice or neglect of duty

to receive a fixed compensation for the devotion of his time to public service

to be paid out of the public Treasury.

Resolved That it be an instruction to the Committee to whom were referred the proceedings of the Convention for the establishment of a national government, to receive a clause or clauses, requiring certain qualifications of property and citizenship in the United States for the Executive, the Judiciary, and the Members of both branches of the Legislature of the United States.

1. A Confederation between the free and independent States of N. H. &c. is hereby solemnly made uniting them together under one general superintending Government for their common Benefit and for their Defense and Security against all Designs and Leagues that may be injurious to their Interests and against all Forc[e]4 and Attacks offered to or made upon them or any of them

4 Two Branches of the Legislature — Senate — House of Delegates — together the U. S. in Congress assembled

H. D. to consist of one Member for every thousand Inhabitants 8/6 of Blacks included

Senate to be elected from four Districts — to serve by Rotation of four Years — to be elected by the H. D. either from among themselves or the People at large

5 The Senate and H. D. shall by joint Ballot annually chuse the Presidt. U. S. from among themselves or the People at large. — In the Presidt. the executive Authority of the U. S. shall be vested. — His Powers and Duties — He shall have a Right to advise with the Heads of the different Departments as his Council

6 Council of Revision, consisting of the Presidt. S. for for. Affairs, S. of War, Heads of the Departments of Treasury and Admiralty or any two of them togr wt the Presidt.

7 The Members of S. & H. D. shall each have one Vote, and shall be paid out of the common Treasury.

8 The Time of the Election of the Members of the H. D. and of the Meeting of U. S. in C. assembled.

9 No State to make Treaties — lay interfering Duties — keep a naval or land Force (Militia excepted to be disciplined &c according to the Regulations of the U. S.

10. Each State retains its Rights not expressly delegated — But no Bill of the Legislature of any State shall become a law till it shall have been laid before S. &. H. D. in C. assembled and received their Approbation.

11. The exclusive Power of S & H. D. in C. Assembled

12. The S. & H. D. in C. ass. shall have the exclusive Power of regulating Trade and levying Imposts — Each State may lay Embargoes in Time of Scarcity

13 ——— of establishing Post-Offices

14. S. & H. D. in C. ass. shall be the last Resort on Appeal in Disputes between two or more States; which Authority shall be exercised in the following Manner &c

They shall have the exclusive Power of declaring what shall be Treason & Misp. of Treason agt. U. S. — and of instituting a federal judicial Court, to which an Appeal shall be allowed from the judicial Courts of the several States in all Causes wherein Questions shall arise on the Construction of Treaties made by U. S. — or on the Law of Nations — or on the Regulations of U. S. concerning Trade & Revenue — or wherein U. S. shall be a Party — The Court shall consist of Judges to be appointed during good Behaviour — S. & H. D. in C. ass shall have the exclusive Right of instituting in each State a Court of Admiralty, and appointing the Judges &c of the same for all maritime Causes which may arise therein respectively.

16. S & H. D. in C. ass. shall have the exclusive Right of coining Money — regulating its Alloy & Value — fixing the Standard of Weights and Measures throughout U. S.

17. Points in which the Assent of more than a bare Majority shall be necessary.

18 Impeachments shall be by the H. D. before the Senate and the judges of the federal judicial Court.

19. S. & H. D. in C. ass. shall regulate the Militia thro’ the U. S.

20. Means of enforcing and compelling the Payment of the Quota of each State.

21. Manner and Conditions of admiting new States.

22. Power of dividing annexing and consolidating States, on the Consent and Petition of such States.

23. The assent of the Legislature of States shall be sufficient to invest future additional Powers in U. S. in C. ass. and shall bind the whole Confederacy.

24. The Articles of Confederation shall be inviolably observed,× and the Union shall be perpetual; ×unless altered as before directed5

Edition: current; Page: [137]

25 The said States of N. H. &c guarantee mutually each other and their Rights against all other Powers and against all Rebellions &c.

In the draught of a fundamental constitution, two things deserve attention:

1. To insert essential principles only, lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accomodated to times and events. and

2. To use simple and precise language, and general propositions, according to the example of the (several) constitutions of the several states. (For the construction of a constitution of necessarrily differs from that of law)

1. A preamble seems proper not for the purpose of designating the ends of government and human polities — This (business, if not fitter for the schools, is at least sufficiently exausted) display of theory, howsoever proper in the first formation of state governments, (seems) is unfit here; since we are not working on the natural rights of men not yet gathered into society, but upon those rights, modified by society, and (supporting) interwoven with what we call (states) the rights of states — Nor yet is it proper for the purpose of mutually pledging the faith of the parties for the observance of the articles — This may be done more solemnly at the close of the Edition: current; Page: [138] draught, as in the confederation — But the object of our preamble ought to be briefly to (represent) declare, that the present foederal government is insufficient to the general happiness, that the conviction of this fact gave birth to this convention; and that the only effectual (means) 〈mode〉 which they (could) 〈can〉 devise, for curing this insufficiency, is the establishment of a supreme legislative executive and judiciary — (In this manner we may discharge the first resolution. We may then proceed to establish)6a Let it be next declared, that the following are the constitution and fundamentals of government for the United States6b — After this introduction, let us proceed to the

2. First resolution — This resolution involves three particulars

1. the style of the United States, which may continue as it now is.

2 a declaration that (an) 〈a〉 supreme (execu) legislative executive and judiciary shall be established; and

3 a declaration, that these departments shall be distinct, (except) and independent of each other, except in specified cases.

In the next place, treat of the legislative, judiciary and executive in their order, and afterwards, of the miscellaneous subjects, as they occur, bringing together all the resolutions, belonging to the same point, howsoever they may be scattared about and leaving to the last the steps necessary to introduce the government — (Tak) The following plan is therefore submitted

I The Legislative

1. shall consist of two branches: viz:

a) a house of delegates; and

b) a senate;

2. which together shall be called “the legislature of the

“United States of America”.

3 a) The house of delegates

1.

(shall never be greater in number than

To effect this, pursue a rule, similar to that Edition: current; Page: [139] prescribed in the 16th. article of the New-York constitution.)

2. Each state shall send delegates, according to the ratio, recommended by congress

3. to ascertain this point, let a census be taken in due time as the national legislature shall direct; within six years from the first meeting of the legislature; and once in every term of ten years thereafter

4. the census being taken and returned, the legislature shall apportion the representation:

5. The qualifications of (a) delegates shall be the age of twenty five years at least. and citizenship:7 (and any person possessing these qualifications may be elected except)

6. Their duration in office shall be for two years.

7. The elections shall be biennially held on the same day through the same state(s): except in case of accidents, and where an adjournment to the succeeding day may be necessary.

8. The place shall be fixed by the (national) legislatures from time to time, or on their default by the national legislature.

9. So shall the presiding officer

10. (Votes shall be given by ballot, unless ⅔ of the national legislature shall choose to vary the mode.)

11. The qualification of electors shall be the same (throughout the states; viz.) with that in the particular states unless the legislature shall hereafter direct some uniform qualification to prevail through the states.

(citizenship: manhood sanity of mind

Edition: current; Page: [140]

previous residence for one year, or possession of real property within the state for the whole of one year, or inrolment in the militia for the whole of a years.)8

(12. All persons who are may be elected)

12. A majority shall be a quorum for business; but a smaller number may be authorized by the house to call for and punish nonattending members, and to adjourn for any time not exceeding one week

13. (quaere. how far the right of expulsion may be proper.) The house of delegates shall have power over its own members.

14.

The delegates shall be privileged from arrest9 (or restraint) personal restraint during their attendance, for so long a time before and after,

as may be necessary, for travelling to and from the legislature (and they shall have no other privilege whatsoever.)

(15. Their wages shall be)

16 They shall be ineligible to and incapable of holding offices under the authority of the united states, during the term of service of the house of delegates.

17. Vacancies by death disability or resignation shall be supplied by a writ from the (speaker or any other person, appointed by the house.) governor of the state, wherein they shall happen.

18. The house shall have power to make rules for its own government.

19 The house shall not adjourn without the concurrence of the senate for more than one week, nor without such concurrence to any other place, than the one at which they are sitting.

Edition: current; Page: [141]

4 b) The Senate —

(1. shall consist of members; each possessing a vote)

2.the legislature of Each state shall (send) appoint two (members) senators using their discretion as to the time and manner of choosing them.

3.

the qualification of (a) senators shall be

the age of 25 years at least:

citizenship in the united states:

and property to the amount of

4.

(Their duration in office shall)

They shall be elected for six years and immediately after the first election they shall be divided by lot as near as may be into (four) three classes, (six in each class,) and numbered 1, 2, 3: and the seats of the members of the first class shall be vacated at the expiration of the (first) second year, of the second class at the expiration of the fourth and of the third class at the end of the sixth year, and so on continually, that a third part of the senate may be biennially chosen.

5. A majority shall be a quorum for business. but a smaller number may be authorized to call for and punish non attending members and to adjourn (for any time not exceeding one week) 〈from day to day〉.

6.Each senator shall have one vote

(6) 7.The senate shall have power over its own members.

(7) 8.

The senators shall be privileged from arrest10personal restraint during their attendance,

and for so long a time before

and so long after,

as may be necessary for travelling to and from the legislature

(and they shall have no other privileges whatsoever.)

(8) 9.

The senators shall be ineligible to and incapable Edition: current; Page: [142] of holding any office under the authority of the united states,

during the term for which they are elected, and for one year thereafter,

(except in the instance of those offices, which may be instituted for the better conducting of the business of the senate, while in session)

(10. Vacancies)

(10.

The wages of the senators shall be paid out of the (nat) treasury of the united states.:

those wages for the first six years shall be dollars per diem —

at the beginning of (the) every sixth year after the first, the supreme judiciary shall cause a special jury of the most respectable merchants and farmers to be summoned to declare what shall have been the averaged value of wheat during the last six years, in the state, where the legislature may be sitting: And for the six subsequent years, the senators shall receive per diem the averaged value of bushels of wheat.)

11. The (house) Senate shall have power to make rules for its own government

12. The Senate shall not adjourn without the concurrence of the house of delegates for more than (one week) 〈3 days〉, nor without such concurrence to any place other than that at which they are sitting.

The following are

1 the legislative powers; with certain exceptions; and under certain restrictions

(2 with certain exceptions and)

(3 under certain restrictions)

agrd. 1. To raise money by taxation, unlimited as to sum, for the (future) past (or) 〈&〉 future debts and necessities of the union and to establish rules for collection

Exception(s)

agrd. No Taxes on exports. — Restrictions 1. direct Edition: current; Page: [143] taxation proportioned to representation 2. No (headpost) capitation-tax which does not apply to all inhabitants under the above limitation (& to be levied uniform) 3. no (other) indirect tax which is not common to all 4. (Delinquencies shall be be distress — [illegible words]) 5. To regulate commerce 〈both foreign & domestic〉

2. 〈no State to lay a duty on imports —〉

Exceptions

1. no Duty on exports.

2. no prohibition on (such) 〈ye〉 Importations of 〈such〉 inhabitants 〈or People as the sevl. States think proper to admit〉

3. no duties by way of such prohibition.

Restrictions

1. A navigation act shall not be passed, but with the consent of (eleven states in) 〈⅔d. of the Members present of〉 the senate and (10 in) 〈the like No. of〉 the house of representatives.

(2. Nor shall any other regulation — and this rule shall prevail, whensoever the subject shall occur in any act.)

(3. the lawful territory To make treaties of commerce (qu: as to senate) Under the foregoing restrictions)

4.

(To make treaties of peace or alliance

(qu: as to senate) under the foregoing restrictions, and

without the surrender of territory for an equivalent,

and in no case, unless a superior title.)

5. To make war〈: (and)〉 raise armies. 〈& equip Fleets.〉

6.

To provide tribunals and punishment for mere offences against the law of nations.

9. To adjust upon the plan heretofore used all disputes between the States 〈respecting Territory & Jurisdn〉

10. To (regulate) 〈The exclusive right of〉 coining 〈money (Paper prohibit) no State to be perd. in future to emit Paper Bills of Credit witht. the App: of the Natl. Legisle nor to make any (Article) Thing but Specie a Tender in paymt of debts〉11a

11. To regulate naturalization

12.

(To draw forth the) 〈make Laws for calling forth the Aid of the〉 militia, (or any part, or to authorize the Executive

to embody them) 〈to execute the Laws of the Union

to repel Invasion to inforce Treaties suppress internal Comns.〉

13. To establish post-offices

14.

To subdue a rebellion in any particular state, on the application of the legislature thereof.

18. To declare it to be treason to levy war against or adhere to the enemies of the U. S.

19. (To organize the government in those things, which)

〈Insert the 11 Article〉

(All laws of a particular state, repugnant hereto, shall be void, and in the decision thereon, which shall be vested in the supreme judiciary, all incidents without which the general principles cannot be satisfied shall be considered, as involved in the general principle.)

〈That Trials for Criml. Offences be in the State where the Offe was comd — by Jury — and a right to make all Laws necessary to carry the foregoing Powers into Execu —〉

2. The powers belonging peculiarly to the representatives are those concerning money-bills

3. The powers destined for the senate peculiarly, are
Edition: current; Page: [145]

1. To make treaties of commerce

2. to make 〈Treaties of〉 peace 〈& Alliance〉

3. to appoint the judiciary

4. 〈to send Embassadors〉

4. The executive 〈Governor of the united People & States of America.〉11a

1. shall consist of a single person.

2. who shall (hold) be elected by the Legislature 〈by (joint) Ballot (of wh) each Ho. have a Negative on the other〉

3. and shall hold his office for the term of (six) seven years

4. and shall be ineligible thereafter.

5. His powers shall be

1. to carry into execution the national laws.

2. to (command and superintend the militia,) 〈to be Commander in Chief of the Land & Naval Forces of the Union & of the Militia of the sevl. states〉11a

(3. to direct their discipline)

(4. to direct the executives of the states to call them or any part for the support of the national government)

5.

to appoint to offices not otherwise provided for.

〈by the constitution〉

〈shall propose to the Legisle. from Time to Time by Speech or Messg such Meas as concern this Union〉11a

8. (and) to have a qualified negative on legislative acts so as to require repassing by ⅔

9. and shall swear fidelity to the union, (as the legislature shall direct.) 〈by taking an oath of office〉

10. receiving embassadors 11. commissioning officers. 12. convene legislature 〈The Presidt of ye Senate to succeed to the Executive in Case of (death) Vacancy untill the Meeting of the Legisle The power of pardoning vested in the Executive (which) his pardon shall not however, be pleadable to an Impeachmt.〉12a

5. The Judiciary

1. shall consist of one supreme tribunal

2. the judges whereof shall be appointed by the senate

3. and of such inferior tribunals, as the legislature may (appoint) 〈establish〉

(4. the judges of which shall be also appointed by the senate —)

5 all the judges shall hold their offices during good behaviour;

6.

and shall receive punctually,

at stated times

a (fixed) compensation for their services, to be settled by the legislature

in which no diminution shall be made, so as to affect the persons actually in office at the time of such diminution.

and shall swear fidelity to the union.

7. The jurisdiction of the supreme tribunal shall extend

1 to all cases, arising under laws passed by the general 〈Legislature〉
Edition: current; Page: [147]

2. to impeachments of officers, and

3.

to such other cases, as the national legislature

may assign, as involving the national

peace and harmony,

in the collection of the revenue

in disputes between citizens

of different states

〈in disputes between a State & a Citizen or Citizens of another State〉12a

in disputes between different states; and

in disputes, in which subjects or citizens of other countries are concerned

〈& in Cases of Admiralty Jurisdn〉

But this supreme jurisdiction shall be appellate only, except in 〈Cases of Impeachmt. & (in)〉 those instances, in which the legislature shall make it original. and the legislature shall organize it

8. The whole or a part of the jurisdiction aforesaid according to the discretion of the legislature may be assigned to the inferior tribunals, as original tribunals.

Miscellaneous provisions

1 New states soliciting admission into the Union

(1. must be within the present limits of the united states)

2. must lawfully arise, that is

(a- in the territory of the united states, with the assent of the legislature)

(b-

within the limits of a particular state, by the consent of a major part of the people of that state.)

〈States lawfully arising & if within the Limits of any of the prest. States by Consent of the Legisle. of those States.〉12a

3. shall be admitted only on the suffrage of 〈⅔ds〉 in the house of representatives and 〈the like No in the〉 Senate
Edition: current; Page: [148]

4. & shall be admitted on the same terms with the original states (but the number of states or votes required on particular measures shall be readjusted —)

5. provided always, that the legislature may use their discretion in (refusing) admitting or rejecting, and may make any condition concerning the (old) debt of the union 〈at that Time.〉

(6. provided also, that the western states are intitled to admission on the terms specified in the act of congress of)

2. The guarantee is

1. to prevent the establishment of any government, not republican

(2) 〈3.〉 to protect each state against internal commotion: and

(3) 〈2.〉 against external invasion.

4. But this guarantee shall not operate 〈in the last Case〉 without an application from the legislature of a state.

5.

3. The legislative executive and judiciaries of the states shall swear fidelity to the union, as the national legislature shall direct.

4.

The ratification of the reform is — After the approbation of congress — to be made

by a special convention 〈in each State〉

recommended by the assembly

to be chosen for the express purpose

of considering and approving and rejecting it in toto:

and this recommendation may be used from time to time

5. (An alteration may be effected in the articles of union, on the application of two thirds nine 〈⅔d〉 of the state legislatures 〈by a Convn.〉) 〈on appln. of ⅔ds of the State Legislatures to the Natl. Leg. they call a Convn. to revise or alter ye Articles of Union〉Edition: current; Page: [149]

(6. The plighting of faith ought to be in solemn terms) Addenda

1. The assent of the (major part of the people) 〈Conventions〉 of states shall give (birth) operation to this constitution

2. Each assenting state shall notify its assent to congress: who shall publish a day for its commencement, not exceeding After such publication, or with the (failure thereof), assent of the major part of the assenting states after the expiration of days from the giving of the assent of the ninth state,

1. each legislature shall direct the choice of representatives, according to the seventh article and provide for their support:

2. each legislature shall also choose senators; and provide for their support

3. they shall meet at 〈the Place &〉 on the day assigned by congress, (or as the major part of the assenting states shall agree, on any other day.)

4 They shall as soon as may be after meeting elect the executive: and proceed to execute this constitution.

The object of an address is to satisfy the people of the propriety of the proposed reform.

To this end the following plan seems worthy of adoption

1. To state the general objects of a confederation.

2 To shew by general, but pointed observations, in what (particulars) respects, our confederation has fallen short of those objects.

3. The powers, necessary to be given, will then follow as a consequence of the defects

4. A question next arises, whether these powers can with propriety be vested in congress. The answer is, that they cannot

5. But As some states may possibly meditate partial confederations, it would be fit now to refute this opinion briefly.

6. It follows then, that a government of the whole on Edition: current; Page: [150] national principles, with respect to taxation &c is most eligible.

7. This would lead to a short exposition of the leading particulars in the constitution.

8. This done, conclude in a suitable manner.

This is the shortest scheme, which can be adopted. For it would be strange to ask (for) new powers, without assigning some reason — it matters not how general soever — which may apply to all of them Besides we ought to furnish the advocates of the plan in the country with some general topics. Now I conceive, that these heads do not more, than comprehend the necessary points.

already confederated united and known (known) by the Stile of the United States of America”

We The People of the States of New-Hampshire &C do (agree upon), ordain declare and establish the following (Frame of Government as the) Frame of Govt as the Constitution (of the “United States of America” according to which we and our Posterity shall be governed under the Name and Stile of the “United States of America”) of the said United States

1

in a general Assembly to consist of two separate and distinct Bodies of Men, the one to be called the House of Representatives, of the People of the United States the other the Senate of the United States.

The legislative Power of the United States shall be vested in two (Branches a Senate and a House of Representatives;) each of which Bodies shall have a Negative on the other

2.

The Members of the House of Representatives shall be chosen biennially by the People of the United States in the following Manner.

Every Freeman of the Age of twenty one Years (having a freehold Estate within the United States) who has (having) resided in the United States for the Space of one whole Year immediately preceding the Day of Election, and has a Freehold Estate in at least fifty Acres of Land

We the People of (and) the States of New Hampshire, Massachusetts, Rhode Island and Providence Plantations, Connecticut, New. York, New. Jersey, Pennsylvania, Delaware, Maryland, Virginia, North. Carolina, South. Carolina and Georgia do ordain declare and establish the following Constitution for the Government of ourselves and of our Posterity.

1.

The Stile of this Government shall be the “United People and States of America.”

2.

The Government shall consist of supreme legislative, executive and judicial Powers.

3.

The (Supreme) legislative Power shall be vested in a Congress to consist of two separate and distinct Bodies of Men, (one to be called the) a House of Representatives, (the other to be called the) and a Senate (of) each of which shall in all Cases have a Negative on the other (in all cases not otherwise provided for in this Constitution)

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4.

The Members of the House of Representatives shall be chosen every second Year (in the Manner following) by the People of the several States comprehended within this Union (the Time and Place and the Manner and the of holding the Elections and the Rules) The Qualifications of the Electors shall be (appointed) prescribed by the Legislatures of the several States; but their provisions (which they shall make concerning them shall be subject to the Control of) concerning them may at any Time be altered and superseded by the Legislature of the United States.

(No person shall be capable of being chosen) Every Member of the House of Representatives shall be (twenty-five Years of Age) of the Age of twenty five Years at least; shall have been a Citizen in the United States for at least three Years before his Election, and shall be, at the Time of his Election, a Resident of the State, (from) in which he shall be chosen.

The House of Representatives shall, at its first Formation and until the Number of Citizens and Inhabitants shall be taken in the Manner hereinafter described consist of 65 Members, of whom three shall be chosen in New-Hampshire, eight in Massachusetts, &c.

As the (present) Proportions of Numbers in the different States will alter from Time to Time; as some of the States may be hereafter divided; as others may be enlarged by Addition of Territory, or two or more States may be united; and as new States will be erected within the Limits of the United States; the Legislature shall, in each of these cases, possess Authority to regulate the Number of Representatives by the Number of Inhabitants according to the provisions herein after made.

(Representation) Direct Taxation shall always be in Proportion to (direct Taxation.) Representation in the House of Representatives.

(In order to ascertain and regulate the Proportions of direct Taxation from Time to Time, the Legislature of the United States shall, within six Years after its first Meeting and within the Term of every ten Years afterwards, cause)

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The Proportions of direct Taxation shall be regulated by the whole Number of white and other Free Citizens and Inhabitants of every &c. which Number (shall) shall, (be taken) within six Years after the first Meeting of the Legislature (of the United States,) and within the Term of every ten Years afterwards, be taken in such Manner as the said Legislature shall direct (and appoint).

From the first Meeting of the Legislature until the Number of Citizens and Inhabitants shall be taken (in the Manner beforementioned) as aforesaid, direct Taxation shall be in Proportion to the Number of (Inhabitants) Representatives chosen in each State.

All Bills for raising or appropriating Money and for fixing the Salaries of the Officers of Government shall originate in the House of Representatives, and shall not be altered or amended by the Senate. No money shall be drawn from the public Treasury, but in Pursuance of Appropriations that shall originate in the House of Representatives.

The House of Representatives shall be the grand Inquest of this Nation; and all Impeachments shall be made by them. Vacancies in the House of Representatives shall be supplied by Writs of Election from the (Supr) Executive (Pow) Authority of the State in the Representation (of) from which they shall happen.

The House of Representatives shall chuse its own Speaker and other Officers

The (Members of the) Senate of the United States shall be chosen (every sixth year) by the Legislatures of the several States; Each (of which) Legislature shall chuse two Members. (The votes shall not be given by States, but by the Members separately from each State.) Each Member shall have one Vote.

The Members of the Senate shall be chosen for six Years; provided that immediately after the first Election they (Members of the Senate) shall (by) be divided by Lot into three Classes as nearly as may be, and numbered one, two and three. The Seats of the Members of the first Class shall be vacated at the Expiration of the second Year, (th) of the second Class Edition: current; Page: [155] at the Expiration of the fourth Year, of the third Class at the (End) Expiration of the sixth Year, (that a) and so on continually, that a third Part of the Members of the Senate may be (biennially) chosen every second Year.

Every Member of the Senate shall be of the Age of thirty Years at least (thirty Years of Age), shall have been a citizen in the United States for at least four Years before his Election, and shall be, at the Time of his Election a Resident of the State for which he shall be chosen

The Senate (shall be empowered) of the United States shall have Power to make Treaties of (Peace, of Alliance, and of Commerce,) to send Ambassadors, and to appoint the Judges of the Supreme national Court

Each House of the Legislature shall possess the right of originating (Acts) Bills, except in Cases beforementioned

The Senate shall chuse its own President and other Officers.

In each House (of the Legislature) a Majority of the Members shall constitute a Quorum to do Business; but a smaller Number may adjourn from Day to Day

The Members of each House shall be ineligible to and incapable of holding any Office under the Authority of the United States during the Time for which they shall be respectively elected: And the Members of the Senate shall be ineligible to and incapable of holding any such Office for one Year afterwards.

Each House of the Legislature shall be the Judge of the Elections Returns, and Qualifications of its own Members

The Times and Places and the Manner of holding the Elections (for) of the Members of each House shall be prescribed by the Legislatures of each State; but their Provisions concerning them may, at any Time, be altered and superseded by the Legislature of the United States.

The enacting Stile of the Laws of the United States shall be “be it enacted and it is hereby enacted by the House of Representatives, and by the Senate of the United States in Congress assembled

The Legislature of the United States shall have Authority to establish such Qualifications of the Members of each House (of the Legislature) with Regard to Property as to the said Legislature shall seem proper and expedient.

The Members of each House shall receive a Compensation for their Services, to be (paid) ascertained and paid by the State in which they shall be chosen

(A Majority of the Members of each House shall constitute a Quorum to do Business but a smaller Number than a Majority of them may, in each House, adjourn from Day to Day.)

The House of Representatives and the Senate when it shall be acting in a legislative Capacity (Each House) shall keep a Journal of its Proceedings, and shall from Time to Time publish them, (except such Parts as in their Judgment require Secrecy;) and the Yeas and Nays of the Members of each House on any Question shall at the Desire of any Member be entered on the Journal at the desire of any Member

Each House shall have Authority to (settle) determine the Rules and Order of its Proceedings, and (have Power) to punish its own Members for disorderly (and indecent) Behaviour

Each House may expel a Member, but not a second Time for the same Offence.

Freedom of Speech

Neither House shall adjourn for more than three Days without the Consent of the other; nor with such Consent, to any other Place than that at which the two Houses are sitting. But this Regulation shall be applied to the Senate only in its Legislative Capacity.

The Members of each House shall, in all cases, except Treason, Felony & Breach of the Peace, be privileged from Arrest during their Attendance at Congress, and in going to and returning from it.

That the United States in Congress be authorised — to pass Acts for raising a Revenue, — by levying Duties on all Goods and Merchandise of foreign Growth or Manufacture imported into any Part of the United States — by Stamps on Paper Vellum or Parchment — and by a Postage on all Letters and Packages passing through the general Post-Office, to be applied to such foederal Purposes as they shall deem proper and expedient — to make Rules and Regulations for the Collection thereof — to pass Acts for the Regulation of Trade and Commerce as well with foreign Nations as with each other to lay and collect Taxes

That the Executive direct all military Operations

That the Judiciary have authority to hear and determine all Impeachments of foederal Officers; and, by Way of Appeal, in all Cases touching the Rights of Ambassadors — in all Cases of Capture from an Enemy — in all Cases of Piracies and Felonies on the high Seas — in all Cases of Revenue — in all Cases in which Foreigners may be interested in the Construction of any Treaty, or which may arise on any Act for regulating Trade or collecting Revenue or on the Law of Nations, or general commercial or marine Laws

If any State, or any Body of Men in any State, shall oppose Edition: current; Page: [158] or prevent the carrying into Execution the Acts or Treaties of the United States; the Executive shall be authorised to enforce and compel Obedience by calling forth the Powers of the United States.

That the Rule for Naturalization ought to be the same in every State

The Legislature shall consist of two distinct Branches — a Senate and a House of Delegates, each of which shall have a Negative on the other, and shall be stiled the U. S. in Congress assembled.

Each House shall appoint its own Speaker and other Officers, and settle its own Rules of Proceeding; but neither the Senate nor H. D. shall have the power to adjourn for more than Days, without the (other) Consent of both.

There shall be a President, in which the Ex. Authority of the U. S. shall be vested. It shall be his Duty to inform the Legislature of the Condition of U. S. so far as may respect his Department — to recommend Matters to their Consideration — to correspond with the Executives of the several States — to attend to the Execution of the Laws of the U. S. — to transact Affairs with the Officers of Government, civil and military — to expedite all such Measures as may be resolved on by the Legislature — to inspect the Departments of foreign Affairs — War — Treasury — Admiralty — to reside where the Legislature shall sit — to commission all Officers, and keep the Great Seal of U. S. — He shall, by Virtue of his Office, be Commander in chief of the Land Forces of U. S. and Admiral of their Navy — He shall have Power to convene the Legislature on extraordinary Occasions — to prorogue them, provided such Prorogation shall not exceed Days in the space of any — He may suspend Officers, civil and military

The Legislature of U. S. shall have the exclusive Power — of raising a military Land Force — of equiping a Navy — of rating and causing public Taxes to be levied — of regulating the Trade of the several States as well with foreign Nations as with each other — of levying Duties upon Imports and Edition: current; Page: [159] Exports — of establishing Post-Offices, and raising a Revenue from them — of regulating Indian Affairs — of coining Money — fixing the Standard of Weights and Measures — of determining in what Species of Money the public Treasury shall be supplied.

The foederal judicial Court shall try Officers of the U. S. for all Crimes &C in their Offices — (and to this Court an Appeal shall be allowed from the Courts of)

The Legislature of U. S. shall have the exclusive Right of instituting in each State a Court of Admiralty for hearing and determining maritime Causes.

The power of impeaching shall be vested in the H. D. — The Senators and Judges of the foederal Court, be a Court for trying Impeachments.

The Legislature of U. S. shall possess the exclusive Right of establishing the Government and Discipline of the Militia of — and of ordering the Militia of any State to any Place within U. S.

mitted on the same Terms with the original States: But the Legislature may make Conditions with the new States (with Respect to) concerning the (then subsisting) public Debt (of the United States) which shall be then subsisting

The United States shall guaranty to each State a (A) Republican Form of Government (shall be guarantied to each State by the United States); and (the) shall protect each State (from) against (domestic Violence) foreign Invasion and, on the Application of its Legislature (from foreign Invasions) against domestic Violence.

This Constitution ought to be amended whenever such Amendment shall become necessary; and on the Application of the Legislatures of two thirds of the States in the Union, the Legislature of the United States shall call a Convention for that Purpose.

The Members of the Legislature, and the executive and Edition: current; Page: [160] judicial Officers of the United States and of the several States shall be bound by Oath to support this Constitution.

Resolved, That the Constitution proposed by this Convention, to the People (and States) of the Uni(on)ted States for their approbation (should, as soon as may be laid) be (to) laid before the United States in Congress assembled for their Agreement and Recommendation and (should) be afterwards (be) submitted to a Convention chosen in each State under the Recommendation of its Legislature, in order to receive the Ratification of such Convention.

Resolved, That the Ratification of the Conventions of States shall be sufficient for organizing this Constitution: That each assenting (State) Convention shall notify its Assent and Ratification to the United States in Congress assembled: That the United States in Congress assembled, after receiving the Assent and Ratification of the Conventions of States shall appoint and publish a Day, as early as may be, and appoint a Place for (organizing and) commencing (Oper) Proceedings under this Constitution: That after such Publication or, — in case it shall not be made, — (after on) after the Expiration of Days (after) from the Time when the Ratification of the Convention of the State shall have been notified to Congress the Legislatures of the several States shall (chuse) elect Members of the Senate, and direct the Election of Members of the House of Representatives, and shall provide for their support: That the Members of the Legislature shall meet at the Time and Place assigned by Congress or, — if Congress shall have assigned not Time and Place, — at such Time and Place as shall have been agreed on by the Majority of the Members elected for each House, and shall as soon as may be after their Meeting chuse the (Governour) President of the United States and proceed to (carry) execute this Constitution.

(The Legislature (Senate) of the United States shall have Authority) In all Disputes and Controversies now subsisting, or that may hereafter subsist between two or more States, the Senate shall possess the following Powers. Whenever the Legislature, or the Executive Authority, or the lawful Agent of any State in Controversy with another shall (present a petition) by Memorial to the Senate, state the Matter in Question, and apply for a Hearing, Notice of such Memorial and application shall be given by Order of the Senate to the Legislature or the Executive Authority of the other State in Controversy. (A Day) The Senate shall also assign a Day for the Appearance of the Parties by their Agents before that House. The Agents shall be directed to appoint by joint Consent Commissioners or Judges to constitute a Court for hearing and determining the Matter in Question. But if the Agents cannot agree, the Senate shall name three Persons out of each of the several States, and from the List of such Persons each Party shall alternately strike out one (the Party who shall have applied for a Hearing beginning) until the Number shall be reduced to thirteen; and from that Number not less than seven, nor more than nine Names, as the Senate shall direct, shall, in their Presence, be drawn out by Lot; and the Persons, whose names shall be so drawn, or any five of them, shall be Commissioners or Judges to hear and finally determine the Controversy; provided a major Part of the Judges, who shall hear the cause agree in the Determination. If either Party shall neglect to attend at the Day assigned, without showing (to the Sen) sufficient Reasons for not attending, or, being present, shall refuse to strike, the Senate shall proceed to nominate three Persons out of each State, and the (President) Secretary or Clerk of the Senate shall strike in Behalf of the Party absent or refusing. If any of the Parties shall refuse to submit to the Authority of such Court, or shall not appear to prosecute or defend their Claim or Cause; the Court shall nevertheless proceed to pronounce (Sentence or) Judgment. The (Sentence or) Judgment (of the court appointed in the Manner before presented) shall be final and conclusive. The Proceedings shall be transmitted to the (Governour) President of the (United States) Senate and shall be lodged among the public Records for the security of the Parties concerned. Every (Judge) Commissioner shall before he sit in Judgment, take an Oath, to be administered by one of the Judges of the Supreme or Superior Court of the State, where the Cause shall be tried, “well and truly to hear and determine the Matter in Question, according to the best of his Judgment, without Favour, Affection or Hope of Reward.”

All Controversies concerning Lands claimed under different Grants of two or more States, whose Jurisdictions, as they respect such Lands, shall have been decided or adjusted subsequent to such Grants, shall, on Application to the Senate, be finally determined, as near as may be in the same Manner as is before (des) prescribed for deciding Controversies between different States.

(All) Every Bill(s), which shall have passed the House of Representatives and the Senate, shall, before (they) it become a Law(s) be presented to the Governour of the United States for his (Revisal) Revision; (and) If, upon such Revision, he approve (thereof) of it, he shall signify his Approbation by signing it; But, if, upon such Revision, it shall appear to him improper for (becoming) being passed into a Law, he shall return it, together with his Objection against it in Writing, to that House (of Representatives or Senate) in which it shall have originated, who shall enter the Objection at large on their Journal, and proceed to reconsider the Bill. But if after such Reconsideration, two thirds of that House shall, notwithstanding the Objections of the Governour, agree to pass it; it shall, together with his objections, be sent to the other House, (where) by which it shall (also) likewise be reconsidered; and, if approved by two thirds of the other House also, it shall be a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays; and the Names of the Persons voting for or against the Bill shall be entered in the Journal(s) of each House respectively — If any Bill shall not be returned by the Governour within Days after it shall have been presented to him, it shall be a Law, unless the Legislature, by their Adjournment, prevent its Return; in which Case it shall be returned on the first Day of the next Meeting of the Legislature.

We the People of the States of New Hampshire, Massachusetts, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina and Georgia, do ordain, declare and establish the following Constitution for the Government of ourselves and our Posterity.

1.

The Stile of this Government shall be. “the United States of America”.

2.

The Government shall consist of supreme legislative, executive, and judicial Powers.

3.

The legislative Power shall be vested in a Congress, to consist of two separate and distinct Bodies of Men, a House of Representatives, and a Senate; each of which shall in all Cases, have a Negative on the other 〈To meet on the 1st Monday every December —〉

4.

The Members of the House of Representatives shall be chosen every second Year, by the People of the several States comprehended within this Union. The Qualifications of the Electors shall be (prescribed by the Legislatures of the several States; but these Provisions concerning them may, at any Edition: current; Page: [164] Time be altered and superseded by the Legislature of the United States) the same from Time to Time as those of the Electors, in the several States, of the most numerous Branch of their own Legislatures.

Every Member of the House of Representatives shall be of the Age of twenty five Years at least; shall have been a Citizen in the United States for at least three Years before his Election; and shall be, at the Time of his Election, a Resident of the State in which he shall be chosen.

The House of Representatives shall, at its first Formation, and until the Number of Citizens and Inhabitants shall be taken in the Manner herein after described, consist of sixty five Members, of whom three shall be chosen in New-Hampshire, eight in Massachusetts, one in Rhode-Island and Providence Plantations, five in Connecticut, six in New-York, four in New-Jersey, eight in Pennsylvania, one in Delaware, six in Maryland, ten in Virginia, five in North-Carolina, five in South-Carolina, and three in Georgia.

As the Proportions of Numbers in different States will alter from Time to Time; as some of the States may be hereafter divided; as others may be enlarged by Addition of Territory; as two or more States may be united; and as new States will be erected within the Limits of the United States, the Legislature shall, in each of these Cases (possess authority to) regulate the Number of Representatives by the Number of Inhabitants, according to the Provisions herein after made.

All Bills for raising or appropriating Money, and for fixing the Salaries of the Officers of Government, shall originate in the House of Representatives, and shall not be altered or amended by the Senate. No money shall be drawn from the public Treasury, but in Pursuance of Appropriations that shall originate in the House of Representatives.

The House of Representatives shall (be the grand Inquest of the Nation; and all) 〈have the sole Power of〉 Impeachment(s shall be made by them).

Vacancies in the House of Representatives shall be supplied by Writs of Election from the Executive Authority of the State, in the representation from which they shall happen.

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The House of Representatives shall chuse its (own) Speaker and other Officers.

5.

The Senate of the United States shall be chosen by the Legislatures of the several States. Each Legislature shall chuse two Members. Each Member shall have one Vote.

The Senators shall be chosen for six Years; but immediately after the first Election they shall be divided, by Lot, into three Classes, as nearly as may be, numbered one, two and three. The Seats of the Members of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, of the third Class at the Expiration of the sixth Year, (and so continually) 〈so〉 that a third Part of the Members (of the Senate) may be chosen every second Year.

Every Member of the Senate shall be of the Age of thirty Years at least; shall have been a Citizen in the United States for at least four Years before his Election; and shall be, at the time of his Election, a Resident of the State for which he shall be chosen.

The Senate shall (be comp) chuse its own President and other Officers

6.

(Each House of the Legislature shall possess the Right of originating Bills, except in the Cases beforementioned.)

The Times and Places and the Manner of holding the Elections of the Members of each House shall be prescribed by the Legislature of each State; but their Provisions concerning them may, at any Time, be altered (or superseded) by the Legislature of the United States.

The Legislature of the United States shall have Authority to establish such 〈uniform〉 Qualifications of the Members of each House, with Regard to Property, as to the said Legislature shall seem (proper and 〈fit〉) expedient.

In each House a Majority of the Members shall constitute a Quorum to do Business; but a smaller Number may adjourn from Day to Day.

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Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members.

Freedom of Speech and Debate in the Legislature shall not be impeached or questioned in any Court or Place out of the Legislature; and the Members of each House shall, in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at Congress, and in going to and returning from it.

Each House (shall have Authority to) may determine the Rules of its Proceedings, (and to) may punish its (own) Members for disorderly Behaviour. (Each House) and may expel a Member, (but not a second Time for the same Offence).

The House of Representatives, and the Senate, when it shall be acting in a legislative Capacity, (Each House) shall keep a Journal of their Proceedings, and shall, from Time to Time, publish them: and the Yeas and Nays of the Members of each House, on any Question, shall at the Desire of (any) 〈⅕th. of the〉 Member〈s〉 be entered on the Journal.

Neither House (shall adjourn for more than three Days;) without the Consent of the other 〈shall adjourn for more than three Days〉; nor (without such Consent,) to any other Place than that, at which the two Houses are sitting. But this Regulation shall (be applied) 〈not extend〉 to the Senate (only in its legislative Capacity.) 〈when it shall exercise the Powers mentd. in the Article.〉

The Members of each House shall be ineligible to, and incapable of holding any Office under the Authority of the United States during the Time, for which they shall be respectively elected: And the Members of the Senate shall be ineligible to, and incapable of holding any such Office for one Year afterwards.

The Members of each House shall receive a Compensation for their Services, to be ascertained and paid by the State, in which they shall be chosen.

The enacting Stile of the Laws of the United States shall be “be it enacted and it is hereby enacted by the House of Representatives and by the Senate of the United States in Congress assembled”.

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Each House shall possess the Right of Originating Bills, except in the Cases beforementioned.

7.

Every Bill, which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the (Governour) 〈President〉 of the United States for his Revision: If, upon such Revision, he approve of it; he shall signify his Approbation by signing it: But if, upon such Revision, it shall appear to him improper for being passed into a Law; he shall return it, together with his Objections against it, to that House, in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider the Bill. But if after such Reconsideration, two thirds of that House shall, notwithstanding the Objections of the (Governour) 〈President〉, agree to pass it, it shall, together with his Objections, be sent to the other House, by which it shall likewise be reconsidered, and, if approved by two thirds of the other House also; it shall be a Law. But in all such Cases, the Votes of both Houses shall be determined by Yeas and Nays; and the Names of the Persons voting for or against the Bill shall be entered in the Journal of each House respectively.

If any bill shall not be returned by the (Governour) 〈President〉 within 〈seven〉 days after it shall have been presented to him, it shall be a Law, unless the Legislature by their Adjournment prevent its Return; in which Case it shall (be returned on the first Day of the next Meeting of the Legislature) 〈not〉.

8

The Legislature of the United States shall have the (Right and) Power to lay and collect Taxes, Duties, Imposts and Excises; to regulate (Naturalization and) Commerce 〈with foreign Nations & amongst the several States〉; to establish an uniform Rule for Naturalization throughout the United States; to coin Money; to regulate the (Alloy and) Value of 〈foreign〉 Coin; to fix the Standard of Weights and Measures; to establish Edition: current; Page: [168] Post-offices; to borrow Money, and emit Bills on the Credit of the United States; to appoint a Treasurer by Ballott; to constitute Tribunals inferior to the Supreme (national) Court; to make Rules concerning Captures on Land or Water; to declare the Law and Punishment of Piracies and Felonies committed on the high Seas, and the Punishment of counterfeiting the 〈Coin〉 (and) 〈of the U. S. &〉 of Offences against the Law of Nations; (to declare what shall be Treason against the United States;) 〈& of Treason agst the U: S: or any of them; not to work Corruption of Blood or Forfeit except during the Life of the Party;〉 to regulate the Discipline of the Militia of the several States; to subdue a Rebellion in any State, on the Application of its Legislature; to make War; to raise Armies; to build and equip Fleets, to (make laws for) call(ing) forth the Aid of the Militia, in order to execute the Laws of the Union, (to) enforce Treaties, (to) suppress Insurrections, and repel invasions; and to make all Laws that shall be necessary and proper for carrying into (full and complete) Execution (the foregoing Powers, and) all other powers vested, by this Constitution, in the Government of the United States, or in any Department or Officer thereof;

(Representation shall)

(Direct Taxation shall always be in Proportion to Representation in the House of Representatives.)

The proportions of direct Taxation shall be regulated by the whole Number of white and other free Citizens and Inhabitants, of every Age, Sex and Condition, including those bound to Servitude for a Term of Years, and three fifths of all other Persons not comprehended in the foregoing Description; which Number shall, within six Years after the first Meeting of the Legislature, and within the Term of every ten Years afterwards, be taken in such Manner as the said Legislature shall direct.

From the first Meeting of the Legislature until the Number of Citizens and Inhabitants shall be taken as aforesaid, direct Taxation shall be in Proportion to the Number of Representatives chosen in each State.

No Tax or Duty shall be laid by the Legislature, on Articles Edition: current; Page: [169] exported from any State; nor on the emigration or Importation of such Persons as the several States shall think proper to admit; nor shall such emigration or Importation be prohibited.

No Capitation Tax shall be laid, unless in Proportion to the Census herein before directed to be taken.

No Navigation Act shall be passed without the Assent of two thirds of the Members present in each House.

The United States shall not grant any Title of Nobility.

9

The Acts of the Legislature of the United States made in Pursuance of this Constitution, and all Treaties made under the Authority of the United States shall be the supreme Law of the several States, and of their Citizens and Inhabitants; and the Judges in the several States shall be bound thereby in their Decisions, any Thing in the Constitutions or Laws of the several States to the Contrary notwithstanding.

10

No State shall enter into any (Al) Treaty, Alliance (or) Confederation 〈with any foreign Power nor witht. Const. of U. S. into any agreemt. or compact wh (any other) another State or Power〉; nor lay any Imposts or Duties on Imports;18 nor keep Troops or Ships of War in Time of Peace;18 nor grant Letters of Marque and Reprisal; nor coin Money; nor (emit Bills of Credit), without the Consent of the Legislature of the United States, 〈emit Bills of Credit.〉 No State shall, without such Consent engage in any War, unless it shall be actually invaded by Enemies, or the Danger of Invasion be so imminent as not to admit of a Delay, until the Legislature of the United States can be consulted. No State shall grant any Title of Nobility.

11.

The Senate of the United States shall have Power to make Treaties; to send Ambassadors; and to appoint the Judges of the Supreme (national) Court.

Edition: current; Page: [170]

In all Disputes and Controversies now subsisting, or that may hereafter subsist between two or more States 〈respecting (Territory) Jurisdn or Territory〉, the Senate shall possess the following Powers. Whenever the Legislature, or the Executive Authority, or the lawful Agent of any State, in controversy with another, shall, by Memorial to the Senate, state the Matter in Question, and apply for a Hearing, Notice of such Memorial and Application shall be given, by Order of the Senate, to the Legislature, or the Executive Authority of the other State in Controversy. The Senate shall also assign a Day for the Appearance of the Parties, by their Agents before that House. The Agents shall be directed to appoint, by joint Consent, Commissioners or Judges to constitute a Court for hearing and determining the Matter in Question. But if the Agents cannot agree, the Senate shall name three Persons out of each of the several States; and from the List of such Persons each Party shall alternately strike out one, until the Number shall be reduced to thirteen; and from that Number not less than seven, nor more than nine names, as the Senate shall direct, shall in their Presence, be drawn out by Lot; and the Persons whose Names shall be so drawn, or any five of them shall be Commissioners or Judges to hear and finally determine the Controversy, provided a majority (Part) of the Judges, who shall hear the Cause, agree in the Determination. If either Party shall neglect to attend at the Day assigned, without shewing sufficient Reasons for not attending; or being present, shall refuse to strike, the Senate shall proceed to nominate three Persons out of each State, and the (Secretary or) Clerk of the Senate shall strike in Behalf of the Party absent or refusing. If any of the Parties shall refuse to submit to the Authority of such Court, or shall not appear to prosecute or defend their Claim or Cause; the Court shall nevertheless proceed to pronounce Judgment. The Judgment shall be final and conclusive. The Proceedings shall be transmitted to the President of the Senate, and shall be lodged among the public Records for the Security of the Parties concerned. Every Commissioner shall, before he sit in Judgment, take an Oath, to be administered by one of the Judges of the Edition: current; Page: [171] Supreme or Superior Court of the State where the Cause shall be tried, “well and truly to hear and determine the Matter in Question according to the best of his Judgment, without Favor, Affection or Hope of Reward.”

All controversies concerning Lands claimed under different Grants of two or more States, whose Jurisdictions as they respect such Lands, shall have been decided or adjusted subsequent to such Grants 〈or any of them〉 shall, on Application to the Senate, be finally determined, as near as may be, in the same manner as is before prescribed for deciding Controversies between different States.

12.

The Executive Power of the United States shall be vested in a single Person. His Stile shall be, “The President of the United States of America;” and his Title shall be, “His Excellency”. He shall be elected by Ballot by the Legislature. He shall hold his Office during the term of seven Years; but shall not be elected a second Time.

He shall from Time to Time give information 〈to the Legislature〉 of the State of the (Nation to the Legislature) 〈Union〉; he may recommend (Matters) 〈such measures as he shall judge nesy. & expedt.〉 to their Consideration, and (he) may convene them on extraordinary Occasions 〈& in Case of a disagreement between the 2 Houses with regard to the Time of Adj. he may adjourn them to such Time as he shall think proper.〉19 (He shall take Care to the best of his Ability, that the Laws) 〈It shall be his duty to provide for the due & faithful exec — of the Laws〉 of the United States (be faithfully executed) 〈to the best of his ability〉. He shall commission all the Officers of the United States and (shall) appoint (Officers in all Cases) (〈such of them whose appts.) them in all cases〉 not otherwise provided for by this Constitution. He shall receive Ambassadors, and shall correspond with the (Governours and other) 〈Supreme〉 Executives (Officers) of the several States.

He shall have power to grant Reprieves and Pardons; but Edition: current; Page: [172] his Pardon shall not be pleadable in Bar of an Impeachment. He shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the Several States. He shall, at stated Times, receive for his Services, a fixed Compensation, which shall neither be encreased nor diminished during his Continuance in Office. Before he shall enter on the Duties of his Department, he shall take the following Oath or Affirmation, “I—solemnly swear, — or affirm, — that I will faithfully execute the Office of President of the United States of America.” He shall be (dismissed) removed from his Office on Impeachment by the House of Representatives, and Conviction in the Supreme (National) Court, of Treason (or) Bribery or Corruption. In Case of his Impeachment, (Dismission) Removal, Death, Resignation or Disability to discharge the Powers and Duties of his (Department) Office; the President of the Senate shall exercise those Powers and Duties, until another President of the United States be chosen, or until the President impeached or disabled be acquitted, or his Disability be removed.

13.

All Commissions, Patents and Writs shall be in the Name of “the United (People and) States of America.”

14.

The Judicial Power of the United States shall be vested in one Supreme (National) Court, and in such (other) 〈inferior〉 Courts as shall, from Time to Time, be constituted by the Legislature of the United States.

The Judges of the Supreme (National) Court shall (be chosen by the Senate by Ballott). (They shall) hold their Offices during good Behaviour. They shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

The Jurisdiction of the Supreme (National) Court shall extend to all Cases arising under Laws passed by the Legislature of the United States; to all Cases affecting Ambassadors (and other) 〈other〉 public Ministers 〈& Consuls〉, to the Trial Edition: current; Page: [173] of Impeachments of Officers of the United States; to all Cases of Admiralty and Maritime Jurisdiction; to Controversies between 〈States, — except those wh. regard Jurisdn or Territory, — betwn〉 a State and a Citizen or Citizens of another State, between Citizens of different States and between 〈a State or the〉 Citizens (of any of the States) 〈thereof〉 and foreign States, Citizens or Subjects. In Cases of Impeachment, (those) 〈Cases〉 affecting Ambassadors (and) other public Ministers 〈& Consuls〉, and those in which a State shall be (one of the) 〈a〉 Part(ies)〈y〉, this Jurisdiction shall be original. In all the other Cases beforementioned, it shall be appellate, with such Exceptions and under such Regulations as the Legislature shall make. The Legislature may (distribute) 〈assign any part of〉 th(is)e Jurisdiction 〈above mentd., — except the Trial of the Executive —〉, in the Manner and under the Limitations which it shall think proper (among) 〈to〉 such (other) 〈inferior〉 Courts as it shall constitute from Time to Time.

(Crimes shall be tried) 〈&〉 in the State, (in which) 〈where〉 they shall be committed; (and) The Trial of (them) 〈all Criml Offences, — except in Cases of Impeachment —〉 shall be by Jury.

〈Judgmts. in Cases of Impeachmt. shall not extend further than to removal from Office & disqualifn. to hold & enjoy any place of Honr. Trust or Profit under the U. S. But the party convicted shall nevertheless be liable & subject to Judl. Trial Judt & Punishment according to (the) Law of (the Land)〉

New States lawfully constituted or established within the Limits of the United States may be admitted, by the Legislature, into this Government; but to such Admission the Consent of two thirds of the Members present in each House shall be necessary. If a new State shall arise within the Limits of any of the present States; the consent of the Legislatures of such States shall be also necessary to its Admission. If (such) the Admission be consented to, the new States shall be admitted on the same Terms with the original States. But the Legislature may make Conditions with the new States concerning the public Debt, which shall be then subsisting.

〈The free (inhabs) Citizens of each State shall be intitled Edition: current; Page: [174] to all Privileges & Immunities of free Citizens in the sevl States20

Any person charged with Treason Felony or high Misdemeanor who shall flee from Justice & be found in any of the U States shall on demd of the executive power of the State from wh. he fled be delivd. up & removed to the State havg Jurisdn of (the tr) the Offence. —

Full Faith & Credit &c〉

The United States shall guaranty to each State a Republican form of Government; and shall protect each State against foreign Invasions, and, on the Application of its Legislature, against domestic Violence.

This Constitution ought to be amended whenever such amendment shall become necessary; and on the Application of (two thirds) the Legislatures of two thirds of the States of the Union, the Legislature of the United States shall call a Convention for that Purpose.

The Members of the Legislatures, and the executive and judicial Officers of the United States, and of the several States, shall be bound by Oath to support this Constitution.

(〈In order to introduce this Governnt〉)

(Resolved)

(That) this Constitution proposed (by this Convention to the People of the United States for their Approbation should) 〈shall〉 be laid before the United States in Congress assembled for their (Agreement and Recommendation) 〈Approbation〉 and 〈that in the opinn. of this Conventn. it shd〉 be afterwards submitted to a Convention chosen in each State, under the Recommendations of its Legislature in Order to receive the Ratification of such Convention.

Resolved

〈In order to introde. this Govt it is the opinn of this Convn that〉 That the Ratification of the Conventions of States shall be sufficient for organizing this Constitution. (That each) each assenting Convention (in each) (shall) 〈shd.〉 notify its Assent and Ratification to the United States in Edition: current; Page: [175] Congress assembled: (That the United States in) that Congress (assembled), after receiving the Assent and Ratification of the Conventions of States, (shall) 〈shd.〉 appoint and publish a Day, as early as may be, and appoint a Place for commencing Proceedings under this Constitution: That after such Publication (or, — in Case it shall not be made — after the expiration of Days from the Time when the Ratification of the Convention of the State shall have been notified to Congress,) the Legislatures of the several States (shall) shd. elect Members of the Senate, and direct the Election of Members of the House of Representatives (and shall provide for their support). That the Members of the Legislature (shall) shd. meet at the Time and Place assigned by Congress, (or, — if Congress shall have assigned no Time and Place — at such Time and Place as shall have been agreed on by the Majority of the Members elected for each House;) and (shall) 〈shd.〉 as soon as may be, after their Meeting, choose the President of the United States, and proceed to execute this Constitution.

McHENRYLeft Baltimore 2 August. August 4th.

Returned to Philada. The committee of Convention ready to report. Their report in the hands of Dunlop the printer to strike off copies for the members.

Edition: current; Page: [176]

MONDAY, AUGUST 6, 1787.

JOURNAL Monday August 6. 1787.

The House met agreeably to adjournment.

The honorable John Francis Mercer Esq, One of the Deputies from the State of Maryland, attended and took his seat.

The honorable Mr Rutledge, from the Committee to whom were referred the Proceedings of the Convention for the purpose of reporting a Constitution for the establishment of a national Government conformable to these Proceedings, informed the House that the Committee were prepared to report — The report was then delivered in at the Secretary’s table, and being read once throughout and copies thereof given to the members — It was moved and seconded to adjourn till wednesday morning

which passed in the negative. [Ayes — 3; noes — 5.]

The house then adjourned till to-morrow morning at 11 o’Clock A. M.

DETAIL OF AYES AND NOES

[Beginning of 8th loose sheet]

New Hampshire

Massachusetts

Rhode Island

Connecticut

New York

New Jersey

Pennsylvania

Delaware

Maryland

Virginia

North Carolina

South Carolina

Georgia

Questions

Ayes

Noes

Divided

[232]

no

no

no

aye

aye

aye

no

no

To adjourn till wednesday

3

5

Edition: current; Page: [177]

MADISON Monday August 6th. In Convention

Mr. Rutlidge 〈delivered in〉 the Report of the Committee of detail as follows;2 〈a printed copy being at the same time furnished to each member.〉3

“We the people of the States of New Hampshire, Massachusetts, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia, do ordain, declare, and establish the following Constitution for the Government of Ourselves and our Posterity.

Article I

The stile of the [this] Government shall be. “The United States of America”

II

The Government shall consist of supreme legislative, executive, and judicial powers.

III

The legislative power shall be vested in a Congress, to consist of two separate and distinct bodies of men, a House of Representatives and a Senate; each of which shall [,] in all cases [,] have a negative on the other. The Legislature shall meet on the first Monday in December [in] every year.

Edition: current; Page: [178]

IV

Sect. 1. The members of the House of Representatives shall be chosen every second year, by the people of the several States comprehended within this Union. The qualifications of the electors shall be the same, from time to time, as those of the electors in the several States, of the most numerous branch of their own legislatures.

Sect. 2. Every member of the House of Representatives shall be of the age of twenty five years at least; shall have been a citizen of [in] the United States for at least three years before his election; and shall be, at the time of his election, a resident of the State in which he shall be chosen.

Sect. 3. The House of Representatives shall, at its first formation, and until the number of citizens and inhabitants shall be taken in the manner herein after described, consist of sixty five Members, of whom three shall be chosen in New Hampshire, eight in Massachusetts, one in Rhode-Island and Providence Plantations, five in Connecticut, six in New-York, four in New-Jersey, eight in Pennsylvania, one in Delaware, six in Maryland, ten in Virginia, five in North-Carolina, five in South-Carolina, and three in Georgia.

Sect. 4. As the proportions of numbers in [the] different States will alter from time to time; as some of the States may hereafter be divided; as others may be enlarged by addition of territory; as two or more States may be united; as new States will be erected within the limits of the United States, the Legislature shall, in each of these cases, regulate the number of representatives by the number of inhabitants, according to the provisions herein after made, at the rate of one for every forty thousand.

Sect. 5. All bills for raising or appropriating money, and for fixing the salaries of the officers of the Government, shall originate in the House of Representatives, and shall not be altered or amended by the Senate. No money shall be drawn from the public Treasury, but in pursuance of appropriations that shall originate in the House of Representatives.

Sect. 6. The House of Representatives shall have the sole Edition: current; Page: [179] power of impeachment. It shall choose its Speaker and other officers.

Sect. 7. Vacancies in the House of Representatives shall be supplied by writs of election from the executive authority of the State, in the representation from which it shall happen.

V

Sect. 1. The Senate of the United States shall be chosen by the Legislatures of the several States. Each Legislature shall chuse two members. Vacancies may be supplied by the Executive until the next meeting of the Legislature. Each member shall have one vote.

Sect. 2. The Senators shall be chosen for six years; but immediately after the first election they shall be divided, by lot, into three classes, as nearly as may be, numbered one, two and three. The seats of the members of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, of the third class at the expiration of the sixth year, so that a third part of the members may be chosen every second year.

Sect. 3. Every member of the Senate shall be of the age of thirty years at least; shall have been a citizen in the United States for at least four years before his election; and shall be, at the time of his election, a resident of the State for which he shall be chosen.

Sect. 4. The Senate shall chuse its own President and other officers.

VI

Sect. 1. The times and places and [the] manner of holding the elections of the members of each House shall be prescribed by the Legislature of each State; but their provisions concerning them may, at any time, be altered by the Legislature of the United States.

Sect. 2. The Legislature of the United States shall have authority to establish such uniform qualifications of the members of each House, with regard to property, as to the said Legislature shall seem expedient.

Edition: current; Page: [180]

Sect. 3. In each House a majority of the members shall constitute a quorum to do business; but a smaller number may adjourn from day to day.

Sect. 4. Each House shall be the judge of the elections, returns and qualifications of its own members.

Sect. 5. Freedom of speech and debate in the Legislature shall not be impeached or questioned in any Court or place out of the Legislature; and the members of each House shall, in all cases, except treason [,] felony and breach of the peace, be privileged from arrest during their attendance at Congress, and in going to and returning from it.

Sect. 6. Each House may determine the rules of its proceedings; may punish its members for disorderly behaviour; and may expel a member.

Sect. 7. The House of Representatives, and the Senate, when it shall be acting in a legislative capacity, shall keep a Journal of their proceedings, and shall, from time to time, publish them: and the yeas and nays of the members of each House, on any question, shall [,] at the desire of one-fifth part of the members present, be entered on the journal.

Sect. 8. Neither House, without the consent of the other, shall adjourn for more than three days, nor to any other place than that at which the two Houses are sitting. But this regulation shall not extend to the Senate, when it shall exercise the powers mentioned in the article.

Sect. 9. The members of each House shall be ineligible to, and incapable of holding any office under the authority of the United States, during the time for which they shall respectively be elected: and the members of the Senate shall be ineligible to, and incapable of holding any such office for one year afterwards.

Sect. 10. The members of each House shall receive a compensation for their services, to be ascertained and paid by the State, in which they shall be chosen,

Sect. 11. The enacting stile of the laws of the United States shall be, “Be it enacted by the Senate and Representatives in Congress assembled”.4

Edition: current; Page: [181]

Sect. 12. Each House shall possess the right of originating bills, except in the cases beforementioned.

Sect. 13. Every bill, which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States for his revision: if, upon such revision, he approve of it, he shall signify his approbation by signing it: But if, upon such revision, it shall appear to him improper for being passed into a law, he shall return it, together with his objections against it, to that House in which it shall have originated, who shall enter the objections at large on their journal and proceed to reconsider the bill. But if after such reconsideration, two thirds of that House shall, notwithstanding the objections of the President, agree to pass it, it shall together with his objections, be sent to the other House, by which it shall likewise be reconsidered, and [,] if approved by two thirds of the other House also, it shall become a law. But in all such cases, the votes of both Houses shall be determined by yeas and nays; and the names of the persons voting for or against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within seven days after it shall have been presented to him, it shall be a law, unless the legislature by their adjournment, prevent its return; in which case it shall not be a law.

Sect. 1. The Legislature of the United States shall have the power to lay and collect taxes, duties, imposts and excises;

To regulate commerce with foreign nations, and among the several States;

Edition: current; Page: [182]

To establish an uniform rule of naturalization throughout the United States;

To coin money;

To regulate the value of foreign coin;

To fix the standard of weights and measures;

To establish Post-offices;

To borrow money, and emit bills on the credit of the United States;

To appoint a Treasurer by ballot;

To constitute tribunals inferior to the Supreme Court;

To make rules concerning captures on land and water;

To declare the law and punishment of piracies and felonies committed on the high seas, and the punishment of counterfeiting the coin of the United States, and of offences against the law of nations;

To subdue a rebellion in any State, on the application of its legislature;

To make war;

To raise armies;

To build and equip fleets;

To call forth the aid of the militia, in order to execute the laws of the Union, enforce treaties, suppress insurrections, and repel invasions;

And to make all laws that shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested, by this Constitution, in the government of the United States, or in any department or officer thereof;

Sect. 2. Treason against the United States shall consist only in levying war against the United States, or any of them; and in adhering to the enemies of the United States, or any of them. The Legislature of the United States shall have power to declare the punishment of treason. No person shall be convicted of treason, unless on the testimony of two witnesses. No attainder of treason shall work corruption of bloods nor forfeiture, except during the life of the person attainted.

Sect. 3. The proportions of direct taxation shall be regulated by the whole number of white and other free citizens Edition: current; Page: [183] and inhabitants, of every age, sex and condition, including those bound to servitude for a term of years, and three fifths of all other persons not comprehended in the foregoing description, (except Indians not paying taxes) which number shall, within six years after the first meeting of the Legislature, and within the term of every ten years afterwards, be taken in such manner as the said Legislature shall direct.

Sect. 4. No tax or duty shall be laid by the Legislature on articles exported from any State; nor on the migration or importation of such persons as the several States shall think proper to admit; nor shall such migration or importation be prohibited.

Sect- 5. No capitation tax shall be laid, unless in proportion to the Census hereinbefore directed to be taken.

Sect- 6. No navigation act shall be passed without the assent of two thirds of the members present in each House.

Sect. 7. The United States shall not grant any title of Nobility.

VIII [VII]

The Acts of the Legislature of the United States made in pursuance of this Constitution, and all treaties made under the authority of the United States shall be the supreme law of the several States, and of their citizens and inhabitants; and the judges in the several States shall be bound thereby in their decisions; anything in the Constitutions or laws of the several States to the contrary notwithstanding.

IX [VIII]

Sect. 1. The Senate of the United States shall have power to make treaties, and to appoint Ambassadors, and Judges of the supreme Court.

Sect. 2. In all disputes and controversies now subsisting, or that may hereafter subsist between two or more States, respecting jurisdiction or territory, the Senate shall possess the following powers. Whenever the Legislature, or the Executive authority, or lawful Agent of any State, in controversy Edition: current; Page: [184] with another, shall by memorial to the Senate, state the matter in question, and apply for a hearing; notice of such memorial and application shall be given by order of the Senate, to the Legislature or the Executive authority of the other State in Controversy. The Senate shall also assign a day for the appearance of the parties, by their agents, before the House. The Agents shall be directed to appoint, by joint consent, commissioners or judges to constitute a Court for hearing and determining the matter in question. But if the Agents cannot agree, the Senate shall name three persons out of each of the several States; and from the list of such persons each party shall alternately strike out one, until the number shall be reduced to thirteen; and from that number not less than seven nor more than nine names, as the Senate shall direct, shall in their presence, be drawn out by lot; and the persons whose names shall be so drawn, or any five of them shall be commissioners or Judges to hear and finally determine the controversy; provided a majority of the Judges, who shall hear the cause, agree in the determination. If either party shall neglect to attend at the day assigned, without shewing sufficient reasons for not attending, or being present shall refuse to strike, the Senate shall proceed to nominate three persons out of each State, and the Clerk of the Senate shall strike in behalf of the party absent or refusing. If any of the parties shall refuse to submit to the authority of such Court; or shall not appear to prosecute or defend their claim or cause, the Court shall nevertheless proceed to pronounce judgment. The judgment shall be final and conclusive. The proceedings shall be transmitted to the President of the Senate, and shall be lodged among the public records, for the security of the parties concerned. Every Commissioner shall, before he sit in judgment, take an oath, to be administred by one of the Judges of the Supreme or Superior Court of the State where the cause shall be tried, “well and truly to hear and determine the matter in question according to the best of his judgment, without favor, affection, or hope of reward.”

Sect. 3. All controversies concerning lands claimed under Edition: current; Page: [185] different grants of two or more States, whose jurisdictions, as they respect such lands shall have been decided or adjusted subsequent to such grants, or any of them, shall, on application to the Senate, be finally determined, as near as may be, in the same manner as is before prescribed for deciding controversies between different States.

X [IX]

Sect. 1. The Executive Power of the United States shall be vested in a single person. His stile shall be “The President of the United States of America;” and his title shall be, “His Excellency”. He shall be elected by ballot by the Legislature. He shall hold his office during the term of seven years; but shall not be elected a second time.

Sect. 2. He shall, from time to time, give information to the Legislature, of the state of the Union: he may recommend to their consideration such measures as he shall judge necessary, and expedient: he may convene them on extraordinary occasions. In case of disagreement between the two Houses, with regard to the time of adjournment, he may adjourn them to such time as he thinks proper: he shall take care that the laws of the United States be duly and faithfully executed: he shall commission all the officers of the United States; and shall appoint officers in all cases not otherwise provided for by this Constitution. He shall receive Ambassadors, and may correspond with the supreme Executives of the several States. He shall have power to grant reprieves and pardons; but his pardon shall not be pleadable in bar of an impeachment. He shall be commander in chief of the Army and Navy of the United States, and of the Militia of the Several States. He shall, at stated times, receive for his services, a compensation, which shall neither be increased nor diminished during his continuance in office. Before he shall enter on the duties of his department, he shall take the following oath or affirmation, “I — solemnly swear, (or affirm) that that I will faithfully execute the office of President of the United States of America.” He shall be Edition: current; Page: [186] removed from his office on impeachment by the House of Representatives, and conviction in the supreme Court, of treason, bribery, or corruption. In case of his removal as aforesaid, death, resignation, or disability to discharge the powers and duties of his office, the President of the Senate shall exercise those powers and duties, until another President of the United States be chosen, or until the disability of the President be removed.

XI [X]

Sect. 1. The Judicial Power of the United States shall be vested in one Supreme Court, and in such inferior Courts as shall, when necessary, from time to time, be constituted by the Legislature of the United States.

Sect. 2. The Judges of the Supreme Court, and of the Inferior Courts, shall hold their offices during good behaviour. They shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Sect. 3. The Jurisdiction of the Supreme Court shall extend to all cases arising under laws passed by the Legislature of the United States; to all cases affecting Ambassadors, other Public Ministers and Consuls; to the trial of impeachments of Officers of the United States; to all cases of Admiralty and maritime jurisdiction; to controversies between two or more States, (except such as shall regard Territory or Jurisdiction) between a State and Citizens of another State, between Citizens of different States, and between a State or the Citizens thereof and foreign States, citizens or subjects. In cases of impeachment, cases affecting Ambassadors, other Public Ministers and Consuls, and those in which a State shall be party, this jurisdiction shall be original. In all the other cases before mentioned, it shall be appellate, with such exceptions and under such regulations as the Legislature shall make. The Legislature may assign any part of the jurisdiction above mentioned (except the trial of the President of the United States) in the manner, and Edition: current; Page: [187] under the limitations which it shall think proper, to such Inferior Courts, as it shall constitute from time to time.

Sect. 4. The trial of all criminal offences (except in cases of impeachments) shall be in the State where they shall be committed; and shall be by Jury.

Sect. 5. Judgment, in cases of Impeachment, shall not extend further than to removal from Office, and disqualification to hold and enjoy any office of honour, trust or profit, under the United States. But the party convicted shall, nevertheless be liable and subject to indictment, trial, judgment and punishment according to law.

XII [XI]

No State shall coin money; nor grant letters of marque and reprisals; nor enter into any treaty, alliance, or confederation; nor grant any title of Nobility.

XIII [XII]

No State, without the consent of the Legislature of the United States, shall emit bills of credit, or make any thing but specie a tender in payment of debts; nor lay imposts or duties on imports; nor keep troops or ships of war in time of peace; nor enter into any agreement or compact with another State, or with any foreign power; nor engage in any war, unless it shall be actually invaded by enemies, or the danger of invasion be so imminent, as not to admit of delay, until the Legislature of the United States can be consulted.

XIV [XIII]

The Citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.

XV [XIV]

Any person charged with treason, felony or high misdemeanor in any State, who shall flee from justice, and shall be found in any other State, shall, on demand of the Executive Edition: current; Page: [188] power of the State from which he fled, be delivered up and removed to the State having jurisdiction of the offence.

XVI [XV]

Full faith shall be given in each State to the acts of the Legislatures, and to the records and judicial proceedings of the Courts and Magistrates of every other State.

XVII [XVI]

New States lawfully constituted or established within the limits of the United States may be admitted, by the Legislature, into this Government; but to such admission the consent of two thirds of the members present in each House shall be necessary. If a new State shall arise within the limits of any of the present States, the consent of the Legislatures of such States shall be also necessary to its admission. If the admission be consented to, the new States shall be admitted on the same terms with the original States. But the Legislature may make conditions with the new States, concerning the public debt which shall be then subsisting.

XVIII [XVII]

The United States shall guaranty to each State a Republican form of Government; and shall protect each State against foreign invasions, and, on the application of its Legislature, against domestic violence.

XIX [XVIII]

On the application of the Legislatures of two thirds of the States in the Union, for an amendment of this Constitution, the Legislature of the United States shall call a Convention for that purpose.

XX [XIX]

The members of the Legislatures, and the Executive and Judicial officers of the United States, and of the several States, shall be bound by oath to support this Constitution.

Edition: current; Page: [189]

XXI [XX]

The ratifications of the Conventions of States shall be sufficient for organizing this Constitution.

XXII [XXI]

This Constitution shall be laid before the United States in Congress assembled, for their approbation; and it is the opinion of this Convention, that it should be afterwards submitted to a Convention chosen, under the recommendation of its legislature, in order to receive the ratification of such Convention.

XXIII [XXII]

To introduce this government, it is the opinion of this Convention, that each assenting Convention should notify its assent and ratification to the United States in Congress assembled; that Congress, after receiving the assent and ratification of the Conventions of States, should appoint and publish a day, as early as may be, and appoint a place for commencing proceedings under this Constitution; that after such publication, the Legislatures of the several States should elect members of the Senate, and direct the election of members of the House of Representatives; and that the members of the Legislature should meet at the time and place assigned by Congress, and should, as soon as may be, after their meeting, choose the President of the United States, and proceed to execute this Constitution.”

McHENRY

Proposed to Mr. D. Carrol, Mr. Jenifer — Mr. Mercer and Mr. Martin, to meet to confer on the report, and to p[r]epare ourselves to act in unison.8

Met at Mr. Carrolls lodgings in the afternoon. I repeated the object of our meeting, and proposed that we should take the report up by paragraphs and give our opinions thereon. Mr. Mercer wished to know of me whether I thought Maryland would embrace such a system. I told him I did not know, but I presumed the people would not object to a wise system. He extended this idea to the other gentlemen. Mr. Martin said they would not; That he was against the system, that a compromise only had enabled its abettors to bring it into its present stage — that had Mr. Jenifer voted with him, things would have taken a different turn. Mr. Jenifer said he voted with him till he saw it was in vain to oppose its progress. I begged the gentlemen to observe some order to enable us to do the business we had convened upon. I wished that we could be unanimous — and would make a proposition to effect it. — I would join the deputation in bringing on a motion to postpone the report, to try the affections of the house to an amendment of the confederation without altering the sovereignty of suffrage; which failing we should then agree to render the system reported as perfect as we could, in the mean while to consider our motion to fail and proceed to confer upon the report agreeably to the intention of our meeting. I. E. That we should now and at our future meetings alter the report to our own judgement to be able to appear unanimous in case our motion failed. —

Mr. Carrol could not agree to this proposition, because he did not think the confederation could be amended to answer Edition: current; Page: [191] its intentions. I thought that it was susceptable of a revision which would sufficiently invigorate it for the exigencies of the times. Mr. Mercer thought otherwise as did Mr. Jenifer. This proposition to conciliate the deputation was rejected.

Mr. Martin in the course of the conversation observed that he was against two branches — that we was against the people electing the representatives of the national government. That he wished to see the States governments rendered capable of the most vigorous exertions, and so knit together by a confederation as to act together on national emergencies.

Finding that we could come to no conclusions I recommended meeting again to-morrow, for unless we could appear in the convention with some degree of unanimity it would be unnecessary to remain in it, sacrificing time and money without being able to render any service. They agreed to meet to-morrow, except Mr. Martin who said he was going to New York and would not be back till monday following.

It being of importance to know and to fix the opinions of my colleagues on the most consequential articles of the new system; I prepared the following propositions, for that purpose viz.

Art. IV. Sec. 5. Will you use your best endeavours to obtain for the senate an equal authority over money bills with the house of representatives.?

Art. VII. Sect. 6. Will you use your best endeavours to have it made a part of the system that “no navigation act shall be passed without the assent of two thirds of the representation from each State?

In case these alterations cannot be obtained will you give your assent to the 5 sect. of the IV article and 6 sect. of the VII. article as they stand in the report?

Will you also, (in case these alterations are not obtained) agree that the ratification of the conventions of nine States shall be sufficient for organizing the new constitutions?

N. B.9 Saw Mr. Mercer make out a list of the members names who had attended or were attending in convention Edition: current; Page: [192] with for and against marked opposite most of them — asked carelessly what question occasioned his being so particular upon which he told me laughing that it was no question but that those marked with a for were for a king. I then asked him how he knew that to which he said no matter the thing is so. I took a copy with his permission, and Mr. Martin seeing me about it asked What it was. I told him, in the words Mr. Mercer had told me, when he begged me to let him copy the list which I did.10

Edition: current; Page: [193]

TUESDAY, AUGUST 7, 1787.

JOURNAL Tuesday August 7. 1787.

[To refer the report to a Committee of the whole Ayes — 5; noes — 4.

Delaware being represented during the Debate a question was again taken on ye Committee of ye whole Ayes — 3; noes — 6.]1

On the question to agree to the Preamble to the constitution as reported from the committee to whom were referred the Proceedings of the Convention — it passed unan: in the affirmative [Ayes — 10; noes — 0.]2

On the question to agree to the first article, as reported, it passed in the affirmative

On the question to agree to the second article, as reported, it passed in the affirmative

It was moved and seconded to alter the second clause of the third article so as to read

“each of which shall in all cases have a negative on the legislative acts of the other”

which passed in the negative [Ayes — 5; noes — 5.]

On the question to strike the following clause out of the third article namely

“each of which shall, in all cases, have a negative on the other”

it passed in the affirmative. [Ayes — 7; noes — 3.]

It was moved and seconded to add the following words to the last clause of the third article

Delaware being represented during the Debate a question was again taken on ye Committee of ye whole

3

6

[235]

aye

aye

aye

aye

aye

aye

aye

aye

aye

aye

[236]

aye

aye

aye

aye

no

no

no

aye

no

no

To insert the words “legislative acts of the other in the third article

5

5

[237]

aye

aye

no

aye

aye

no

aye

no

aye

aye

To strike out the words each of wh shall in all cases have a negative on the other 3rd article

7

3

[238]

no

aye

no

aye

aye

aye

aye

aye

aye

aye

To add an amendnt to the last clause of ye 3. article offered by Mr Randolph

8

2

[239]

no

no

no

no

no

no

no

no

aye

aye

To strike out the word Decr and insert “May”

2

8

[240]

no

no

no

no

aye

no

no

no

no

no

To add the words subject to the negative hereafter mentioned

1

9

[241]

no

no

no

no

aye

dd

no

no

no

To strike out the last clause of the first section of the fourth article

1

7

1

[242]

no

no

no

aye

aye

aye

aye

no

no

To adjourn

4

5

[243]

aye

aye

aye

no

no

no

no

no

dd

To adjourn till 10 o’Clock

3

5

[244]

no

no

aye

aye

aye

aye

aye

aye

aye

7

2

Edition: current; Page: [196]

MADISON Teusday August 7th. In Convention

The Report of the Committee 〈of detail being〉 taken up,

Mr. Pinkney moved that it be referred to a Committee of the whole. This was strongly opposed by Mr Ghorum and several others, as likely to produce unnecessary delay; and was negatived. 〈Delaware Maryd. & Virga. only being in the affirmative.〉6

The 〈preamble〉7 of the Report was agreed to nem. con. So were Art: I & II.8

Art: III.9 considered. Col. Mason doubted the propriety of giving each branch a negative on the other “in all cases”. There were some cases in which it was he supposed not intended to be given as in the case of balloting for appointments.

Mr. Sherman. This will restrain the operation of the clause too much. It will particularly exclude a mutual negative in the case of ballots, which he hoped would take place.

Mr. Ghorum contended that elections ought to be made by joint ballot. If separate ballots should be made for the President, and the two branches should be each attached to a favorite, great delay, contention & confusion may ensue. These inconveniences have been felt in Masts. in the election of officers of little importance compared with the Executive of the U. States. The only objection agst. a joint ballot is Edition: current; Page: [197] that it may deprive the Senate of their due weight; but this ought not to prevail over the respect due to the public tranquility & welfare.

Mr. Wilson was for a joint ballot in several cases at least; particularly in the choice of the President, and was therefore for the amendment. Disputes between the two Houses, during & concerng the vacancy of the Executive, might have dangerous consequences.

Col. Mason thought the amendment of Govr. Morris extended too far. Treaties are in a subsequent part declared to be laws, they will be therefore subjected to a negative; altho’ they are to be made as proposed by the Senate alone. He proposed that the mutual negative should be restrained to “cases requiring the distinct assent” of the two Houses.

Mr. Govr. Morris thought this but a repetition of the same thing; the mutual negative and distinct assent, being equavalent expressions. Treaties he thought were not laws.

Mr 〈Madison〉10 moved to strike out the words “each of which shall in all cases, have a negative on the other; the idea being sufficiently expressed in the preceding member of the Article; vesting the “legislative power” in “distinct bodies”. especially as the respective powers and mode of exercising them were fully delineated in a subsequent article.

Genl. Pinkney 2ded. the motion

On a question for inserting legislative Acts as moved by Mr Govr. Morris

Mr 〈Madison〉 wished to know the reasons of the Come for fixing by ye. Constitution the time of Meeting for the Legislature; and suggested, that it be required only that one meeting at least should be held every year leaving the time to be fixed or varied by law.

Edition: current; Page: [198]

Mr. Govr. Mor moved to strike out the sentence. It was improper to tie down the Legislature to a particular time, or even to require a meeting every year. The public business might not require it.

Mr. Pinckney concurred with Mr 〈Madison〉

Mr. Ghorum. If the time be not fixed by the Constition, disputes will arise in the Legislature; and the States will be at a loss to adjust thereto, the times of their elections. In the N. England States, the annual time of meeting had been long fixed by their Charters and Constitutions, and no inconveniency had resulted. He thought it necessary that there should be one meeting at least every year as a check on the Executive department.

Mr. Elseworth was agst. striking out the words. The Legislature will not know till they are met whether the public interest required their meeting or not. He could see no impropriety in fixing the day, as the Convention could judge of it as well as the Legislature.

Mr. Wilson thought on the whole it would be best to fix the day.

Mr. King could not think there would be a necessity for a meeting every year. A great vice in our system was that of legislating too much. The most numerous objects of legislation belong to the States. Those of the Natl. Legislature were but few. The chief of them were commerce & revenue. When these should be once settled, alterations would be rarely necessary & easily made.

Mr 〈Madison〉 thought if the time of meeting should be fixed by a law it wd. be sufficiently fixed & there would be no difficulty 〈then〉 as had been suggested, on the part of the States in adjusting their elections to it. One consideration appeared to him to militate strongly agst. fixing a time by the Constitution. It might happen that the Legislature might be called together by the public exigencies & finish their Session but a short time before the annual period. In this case it would be extremely inconvenient to reassemble so quickly & without the least necessity. He thought one annual meeting ought to be required; but did not wish to make two unavoidable.

Edition: current; Page: [199]

Col. Mason thought the objections against fixing the time insuperable; but that an annual meeting ought to be required as essential to the preservation of the Constitution. The extent of the Country will supply business. And if it should not, the Legislature, besides legislative, is to have inquisitorial powers, which can not safely be long kept in a State of suspension.

Mr. Sherman was decided for fixing the time, as well as for frequent meetings of the Legislative body. Disputes and difficulties will arise between the two Houses, & between both & the States, if the time be changeable — frequent meetings of Parliament were required at the Revolution in England as an essential safeguard of liberty. So also are annual meetings in most of the American charters and constitutions. There will be business eno’ to require it. The Western Country, and the great extent and varying state of our affairs in general will supply objects.

Mr. Randolph11 was agst. fixing any day irrevocably; but as there was no provision made any where in the Constitution for regulating the periods of meeting, and some precise time must be fixed, untill the Legislature shall make provision, he could not agree to strike out the words altogether. Instead of which he moved 〈to add the words following — “unless a different day shall be appointed by law.”〉12

Mr. Govr. Morris moved to strike out Decr. & insert May. It might frequently happen that our measures ought to be influenced by those in Europe, which were generally planned during the Winter and of which intelligence would arrive in the Spring.

Mr. 〈Madison〉 2ded. the motion. he preferred May to Decr. because the latter would require the travelling to & from the Seat of Govt. in the most inconvenient seasons of the year.

Edition: current; Page: [200]

Mr. Wilson. The Winter is the most convenient season for business.

Mr. Elseworth. The summer will interfere too much with private business, that of almost all the probable members of the Legislature being more or less connected with agriculture.

Mr Randolph. The time is of no great moment now, as the Legislature can vary it. On looking into the Constitutions of the States, he found that the times of their elections with which the elections of the Natl. Representatives would no doubt be made to co-incide, would suit better with Decr than May. And it was advisable to render our innovations as little incommodious as possible.

Mr. Read moved to insert 〈after the word “Senate” the words “subject〉13 to the Negative to be hereafter provided”. His object was to give an absolute negative to the Executive — He considered this as so essential to the Constitution, to the preservation of liberty, & to the public welfare, that his duty compelled him to make the motion.

Mr. Rutlidge. Altho’ it is agreed on all hands that an annual meeting of the Legislature should be made necessary, yet that point seems not to be freed from doubt as the clause stands. On this suggestion. “Once at least in every year.” were inserted, nem. con.

Art. III with the foregoing alterations was agd. to nem. con. 〈and is as follows “The Legislative power shall be vested in a Congress to consist of 2 separate & distinct bodies of men; a House of Reps. & a Senate. The Legislature shall meet at least once in every year, and such meeting shall be on the 1st. monday in Decr. unless a different day shall be appointed by law”.〉13

Mr. Govr. Morris moved to strike out the last member of the section 〈beginning with the words〉 “qualifications” of Electors.” in order that some other provision might be substituted which wd. restrain the right of suffrage to freeholders.

Mr. Fitzsimmons 2ded. the motion

Mr. Williamson was opposed to it.

Mr. Wilson. This part of the Report was well considered by the Committee, and he did not think it could be changed for the better. It was difficult to form any uniform rule of qualifications for all the States. Unnecessary innovations he thought too should be avoided. It would be very hard & disagreeable for the same persons, at the same time, to vote for representatives in the State Legislature and to be excluded from a vote for those in the Natl. Legislature.

Mr. Govr. Morris. Such a hardship would be neither great nor novel. The people are accustomed to it and not dissatisfied with it, in several of the States. In some the qualifications are different for the choice of the Govr. & Representatives; In others for different Houses of the Legislature. Another objection agst. the clause as it stands is that it makes the qualifications of the Natl. Legislature depend on the will of the States, which he thought not proper.

Mr. Elseworth. thought the qualifications of the electors stood on the most proper footing. The right of suffrage was a tender point, and strongly guarded by most of the 〈State〉 Constitutions. The people will not readily subscribe to the Natl. Constitution, if it should subject them to be disfranchised. The States are the best Judges of the circumstances and temper of their own people.

Col. Mason. The force of habit is certainly not attended to by those gentlemen who wish for innovations on this point. Eight or nine States have extended the right of suffrage beyond Edition: current; Page: [202] the freeholders. What will the people there say, if they should be disfranchised. A power to alter the qualifications would be a dangerous power in the hands of the Legislature.

Mr. Butler. There is no right of which the people are more jealous than that of suffrage Abridgments of it tend to the same revolution as in Holland, where they have at length thrown all power into the hands of the Senates, who fill up vacancies themselves, and form a rank aristocracy.

Mr. Dickenson. had a very different idea of the tendency of vesting the right of suffrage in the freeholders of the Country. He considered them as the best guardians of liberty; And the restriction of the right to them as a necessary defence agst. the dangerous influence of those multitudes without property & without principle, with which our Country like all others, will in time abound. As to the unpopularity of the innovation it was in his opinion chemirical. The great mass of our Citizens is composed at this time of freeholders, and will be pleased with it.

Mr Elseworth. How shall the freehold be defined? Ought not every man who pays a tax to vote for the representative who is to levy & dispose of his money? Shall the wealthy merchants and manufacturers, who will bear a full share of the public burdens be not allowed a voice in the imposition of them — 〈taxation and representation ought to go together.〉

Mr. Govr. Morris. He had long learned not to be the dupe of words. The sound of Aristocracy therefore, had no effect on him. It was the thing, not the name, to which he was opposed, and one of his principal objections to the Constitution as it is now before us, is that it threatens this Country with an Aristocracy. The aristocracy will grow out of the House of Representatives. Give the votes to people who have no property, and they will sell them to the rich who will be able to buy them. We should not confine our attention to the present moment. The time is not distant when this Country will abound with mechanics & manufacturers who will receive their bread from their employers. Will such men be the secure & faithful Guardians of liberty? Will they be the impregnable barrier agst. aristocracy? — He was as Edition: current; Page: [203] little duped by the association of the words, “taxation & Representation” — The man who does not give his vote freely is not represented. It is the man who dictates the vote. Children do not vote. Why? because they want prudence. because they have no will of their own. The ignorant & the dependent can be as little trusted with the public interest. He did not conceive the difficulty of defining “freeholders” to be insuperable. Still less that the restriction could be unpopular. 9/10 of the people are at present freeholders and these will certainly be pleased with it. As to Merchts. &c. if they have wealth & value the right they can acquire it. If not they don’t deserve it.

Col. Mason. We all feel too strongly the remains of antient prejudices, and view things too much through a British Medium. A Freehold is the qualification in England, & hence it is imagined to be the only proper one. The true idea in his opinion was that every man having evidence of attachment to & permanent common interest with the Society ought to share in all its rights & privileges. Was this qualification restrained to freeholders? Does no other kind of property but land evidence a common interest in the proprietor? does nothing besides property mark a permanent attachment. Ought the merchant, the monied man, the parent of a number of children whose fortunes are to be pursued in their own 〈Country〉, to be viewed as suspicious characters, and unworthy to be trusted with the common rights of their fellow Citizens

Mr. 〈Madison.〉 the right of suffrage is certainly one of the fundamental articles of republican Government, and ought not to be left to be regulated by the Legislature. A gradual abridgment of this right has been the mode in which Aristocracies have been built on the ruins of popular forms. Whether the Constitutional qualification ought to be a freehold, would with him depend much on the probable reception such a change would meet with in States where the right was now exercised by every description of people. In several of the States a freehold was now the qualification. Viewing the subject in its merits alone, the freeholders of the Country would be the safest depositories of Republican liberty. In future times a Edition: current; Page: [204] great majority of the people will not only be without landed, but any other sort of, property. These will either combine under the influence of their common situation; in which case,15 the rights of property & the public liberty,16 〈will not be secure in their hands:〉 or which is more probable, they will become the tools of opulence & ambition, in which case there will be equal danger on another side. The example of England has been misconceived (by Col Mason). A very small proportion of the Representatives are there chosen by freeholders. The greatest part are chosen by the Cities & boroughs, in many of which the qualification of suffrage is as low as it is in any one of the U. S. and it was in 〈the boroughs & Cities〉 rather than the Counties, that bribery most prevailed, & the influence of the Crown on elections was most dangerously exerted.17

Docr. Franklin. It is of great consequence that we shd. not depress the virtue & public spirit of our common people; of which they displayed a great deal during the war, and which contributed principally to the favorable issue of it. Edition: current; Page: [205] He related the honorable refusal of the American seamen who were carried in great numbers into the British Prisons during the war, to redeem themselves from misery or to seek their fortunes, by entering on board the Ships of the Enemies to their Country; contrasting their patriotism with a contemporary instance in which the British seamen made prisoners by the Americans, readily entered on the ships of the latter on being promised a share of the prizes that might be made out of their own Country. This proceeded he said, from the different manner in which the common people were treated in America & G. Britain. He did not think that the elected had any right in any case to narrow the privileges of the electors. He quoted as arbitrary the British Statute setting forth the danger of tumultuous meetings, and under that pretext, narrowing the right of suffrage to persons having freeholds of a certain value; observing that this Statute was soon followed by another under the succeeding Parliamt. subjecting the people who had no votes to peculiar labors & hardships. He was persuaded also that such a restriction as was proposed would give great uneasiness in the populous States. The sons of a substantial farmer, not being themselves freeholders, would not be pleased at being disfranchised, and there are a great many persons of that description.

Mr. Mercer. The Constitution is objectionable in many points, but in none more than the present. He objected to the footing on which the qualification was put, but particularly to the mode of election by the people. The people can not know & judge of the characters of Candidates. The worse possible choice will be made. He quoted the case of the Senate in Virga. as an example in point- The people in Towns can unite their votes in favor of one favorite; & by that means always prevail over the people of the Country, who being dispersed will scatter their votes among a variety of candidates.

Mr. Rutlidge thought the idea of restraining the right of suffrage to the freeholders a very unadvised one. It would create division among the people & make enemies of all those who should be excluded.

Edition: current; Page: [206]

On the question for striking out as moved by Mr. Govr. Morris, from the word “qualifications” to the end of the III article

KING Tuesday 7. Augt 87

3A — a. in all cases have a negative &c — proposed to be altered so that the negative extend only to those legislative acts in the passage whereof each Br. has concurrent authority — It was remarked by Madison yt. the whole clause “each of which shall in all cases have a negative on the other.” might be struck out, and the Legislature wd. be well organised — This motion was agreed to, & the words stricken out.

— B. Madison proposed omitting in the Constitution the Time when the Legislature shd. meet — G. Morris in favor of leaving the Time of meeting to the Legislature — He remarked yt. if the Time was fixed in the Constitution, when the Legisl. shd. meet, it wd. be broken for yy wd. not meet at the Time fixed —

Gorham — in favor of meeting once a year and fixing the period — he was for meeting to superintend the conduct of the executive —

Mason — In favor of an annual meeting — They are not only Legislators but they possess inquisitorial powers. They must meet frequently to inspect the Conduct of the public offices —

4. Art. — S. 1 — c. The clause of Qualifications of Electors — G. Morris proposed to strike out the Clause — and to leave Edition: current; Page: [207] it to the Legislature to establish the Qualifications of Electors & Elected — or to add a Clause that the Legislat. may hereafter alter the Qualifications —

Elsworth — If the Legislature can alter the Qualifications, they may disqualify ¾ or any greater proportion from being Electors — This wd. go far in favor of Aristocracy — we are safe as it is — because the States have staked yr. Liberties on the Qualifications as yy now stand —

Dickenson — It is said yr. restraining by ye Constitution the rights of Election to Freeholders, is a step towards aristocracy — is this true, No. — we are safe by trusting the owners of the soil — the Owners of the Country — it will not be unpopular — because the Freeholders are the most numerous at this Time — The Danger to Free Governments has not been from Freeholders, but those who are not Freeholders — there is no Danger — because our Laws favor the Division of property — The Freehold will be parcelled among all the worthy men in the State — The Merchants & Mechanicks are safe — They may become Freeholders besides they are represented in ye State Legislatures, which elect the Senate of the US — Elsuorth — Why confine Elections to Freeholders — The rule is this — he who pays and is governed ought to have a right to vote — there is no justice in supposing that Virtue & Talents, are confined to Freeholders —

G. Morris — I disregard sounds — I am not alarmed with the word Aristocracy — but I dread the thing — I will oppose it — and for that reason I think I shall oppose this Constitution, because I think this constitution establishes an Aristocracy — there can be no Aristocracy if the Freeholders are Electors — but there will be, when a great & rich man shall bring his indigent Dependents to vote in Elections — if you don’t establish a qualification of property, you will have an Aristocracy — Confing. ye. Electn. to Freeholders will not be unpopular because 9/10th of the Inhabs. are Freeholders —

Mason — I think every person of full age and who can give evidence of a common Interest with the community shd. be an Elector — under this definition has a Freeholder alone ys. Edition: current; Page: [208] common Interest —? I think the Father of a Family has this interest — his Children will remain — this is a natural Interest — a Farm & other property is an artificial interest — we are governed by our prejudices in favr. of Engd — there a Twig, a Turf is the Elector —

Madison — I am in favr. of the rigt. of Election being confind. to Freeholders — we are not governed by British Attachments — because the Knights of Shires are elected by Freeholders, but the Members from the Cities & Boroughs are elected by persons qualified by as small property as in any country and wholly without Freeholds — where is the Corruption in England: where is the Crown Influence seen — in the Cities & Boroughs & not in the Counties —

4 A. S. 1

Franklin — I am afraid by depositing the rights of Elections in the Freeholders it will be injurious to the lower class of Freemen — this class have hardy Virtues and gt. Integrity — the late war is a glorious Testimony in favor of plebian Virtue — Military men are sensible of this Truth — I know yt our Seamen prisoners in England refused all Allurements to draw them from yr. Allegiance — they were threatened with Halters but refused — this was not the case with the Brith. Seamen — they entered the American service & pointed out where they might make more marine prisoners — This is the reason — the Americans were all free and equal to any of yr. fellow Citizens — the British once were so — in antient Times every freeman was an Elector — but finally they made a law requiring an Elector to be a Freeholder — this was only in the Shires — The consequence was that the residue of Inhabitants were disgraced — in the next parliament they made a law authorising the Justices to fix the price of Labor — to compel any person not an Elector or Freeholder to labor for a Freeholder at the stated price or to be imprisoned — the English common people from that period lost a large portion of patriotism —19

Edition: current; Page: [209]

McHENRYAugt. 7.

Mr. Martin set out for New York on this day so we were without his concurrence in the propositions.20

Shewed these propositions to Mr. Carroll Mr. Jenifer and Mr. Mercer in convention. They said in general terms that they believed they should accord with them. I observed to Mr. Carrol that we would meet again in the evening and talk over the subject.21

The business of the Convention proceeded.

The preamble or caption and the 1. and 2. article passed without debate, the 3 article was amended so as to leave it with the legislature to appoint after the first meeting, the day for the succeeding meetings.

The IV article gave rise to a long debate, respecting the qualifications of the electors.

Mr. Dickinson contended for confining the rights of election in the first branch to free holders. No one could be considered as having an interest in the government unless he possessed some of the soil.

The fear of an aristocracy was a theoretical fiction. The owners of the soil could have no interest distinct from the country. There was no reason to dread a few men becoming lords of such an extent of territory as to enable them to govern at their pleasure.

Governeur Morris — thought that wise men should not suffer themselves to be misguided by sound. If the suffrage was to be open to all freemen — the government would indubitably be an aristocracy. The system was a system of Aristocracy. It put it in the power of opulent men whose business created numerous dependents to rule at all elections. Hence so soon as we erected large manufactories and our towns Edition: current; Page: [210] became more populous — wealthy merchants and manufacturers would elect the house of representatives. This was an aristocracy. This could only be avoided by confining the suffrage to free holders. Mr. Maddison supported similar sentiments.

The old ideas of taxation and representation were opposed to such reasoning.22

Doctor Franklin spoke on this occasion. He observed that in time of war a country owed much to the lower class of citizens. Our late war was an instance of what they could suffer and perform. If denied the right of suffrage it would debase their spirit and detatch them from the interest of the country. One thousand of our seamen were confined in English prisons — had bribes offered them to go on board English vessels which they rejected. An English ship was taken by one of our men of war. It was proposed to the English sailors to join ours in a cruise and share alike with thm in the captures. They immediately agreed to the proposal. This difference of behavior arises from23 the operation of freedom in America, and the laws in England. One British Statute excluded a number of subjects from a suffrage — These immediately became slaves —

At thee o’clock the house adjourned without coming to any issue.

At five o’clock in the evening I went to Mr. Carrolls lodging to confer with my colleagues on the points I had submitted to their consideration. I found Mr. Carroll alone when We entered upon their merits. He agreed with me that the deputation should oppose a resolute face to the 5 sect of the IV article,24 and that they ought to reject it. He appeared fully sensible of its tendency — That lodging in the house of representatives the sole right of raising and appropriating money, Edition: current; Page: [211] upon which the Senate had only a negative, gave to that branch an inordinate power in the constitution, which must end in its destruction. That without equal powers they were not an equal check upon each other — and that this was the chance that appeared for obtained an equal suffrage, or a suffrage equal to wht we had in the present confedn.

We accorded also that the deputation should in no event consent to the 6 sect. of VII article.25 He saw plainly that as a quorum consisted of a majority of the members of each house — that the dearest interest of trade were under the controul of four States or of 17 membes in one branch and 8 in the other branch.26

We adverted also to the 1st sect of the VII article which enabled the legislature to lay and collect taxes, duties, imposts and excises, and to regulate commerce among the several States. We almost shuddered at the fate of the commerce of Maryland should we be unable to make any change in this extraordinary power.

We agreed that our deputation ought never to assent to this article in its present form or without obtaining such a provision as I proposed.

I now begged his particular attention to my last proposition.27 By the XXII article we were called upon to agree that the system should be submitted to a convention chosen in each State under the recommendation of its legislature. And that a less number of conventions than the whole agreeing to the system should be sufficient to organise the constitution.

We had taken an oath to support our constitution and frame of government. We had been empowered by a legislature legally constituted to revise the confederation and fit it for the exigencies of government, and preservation of the union. Could we do this business in a manner contrary to our constitution? I feared (This28 was said first I thought — then I feared29) Edition: current; Page: [212] we could not. If we relinquished any of the rights or powers of our government to the U. S. of America, we could no otherwise agree to that relinquishment than in the mode our constitution prescribed for making changes or alterations in it.

Mr. Carrol said he had felt his doubts respecting the propriety of this article as it respected Maryland; but he hoped we should be able to get over this difficulty.

Mr. Jenifer now came in to whom Mr. Carroll repeated what we had said upon my propositions and our determinations. Mr. Jenifer agreed to act in unison with us but seemed to have vague ideas of the mischiefs of the system as it stood in the report.

I wished to impress him with the necessity to support us, and touched upon some popular points.

I suggested to him the unfavorable impression it would make upon the people on account of its expence — An army and navy was to be raised and supported, expensive courts of judicature to be maintained, and a princely president to be provided for etc — That it was plain that the revenue for these purposes was to be chiefly drawn from commerce. That Maryland in this case would have this resource taken from her, without the expences of her own government being lessened. — That what would be raised from her commerce and by indirect taxation would far exceed the proportion she would be called upon to pay under the present confederation.

An increase of taxes, and a decrease in the objects of taxation as they respected a revenue for the State would not prove very palatable to our people, who might think that the whole objects of taxation were hardly sufficient to discharge the States obligations.

Mr. Mercer came in, and said he would go with the deputation on the points in question. He would wish it to be understood however, that he did not like the system, that it was weak — That he would produce a better one since the convention had undertaken to go radically to work, that perhaps he would not be supported by any one, but if he was not, he would go with the stream —

Edition: current; Page: [213]

WEDNESDAY, AUGUST 8, 1787.

JOURNAL Wednesday August 8. 1787.

On the question to agree to the first section of the fourth article as reported

it passed unanimously in the affirmative

It was moved and seconded to strike out the word “three” and to insert the word “seven” in the second section of the fourth article

which passed in the affirmative [Ayes — 10; noes — 1.]

It was moved and seconded to amend the second section of the fourth article by inserting the word “of” instead of “in” after the word “citizen” and the words “an inhabitant” instead of the words “a resident”

On the question to agree to the second section of the fourth article as amended

it passed in the affirmative [Ayes — 11; noes — 0.]

It was moved and seconded to strike out the word “five” and to insert the word “six” before the words “in South Carolina” in the third section of the fourth article

which passed in the negative [Ayes — 4; noes — 7.]

Edition: current; Page: [214]

On the question to agree to the third section of the fourth article as reported

it passed in the affirmative

It was moved and seconded to alter the latter clause of the fourth section of the fourth article so as to read as follows namely

“according to the rule herein after made for direct taxation not exceeding the rate of One for every forty thousand”

which passed in the affirmative [Ayes — 9; noes — 2.]

It was moved and seconded to add the following clause to the fourth section of the fourth article namely

“Provided that every State shall have at least one representative”

which passed in the affirmative

It was moved and seconded to insert the word “free” before the word “inhabitants” in the fourth section of the fourth article

which passed in the negative. [Ayes — 1; noes — 10.]

On the question to agree to the fourth section of the fourth article as amended

it passed in the affirmative

It was moved and seconded to strike out the fifth section of the fourth article

which passed in the affirmative [Ayes — 7; noes — 4.]

And then the House adjourned till to-morrow at 11 o’clock A. M.

Edition: current; Page: [215]

DETAIL OF AYES AND NOES

New Hampshire

Massachusetts

Rhode Island

Connecticut

New York

New Jersey

Pennsylvania

Delaware

Maryland

Virginia

North Carolina

South Carolina

Georgia

Questions

Ayes

Noes

Divided

[245]

aye

aye

no

aye

aye

aye

aye

aye

aye

aye

aye

To strike out “three” and insert seven in ye 2 Sect 4 art.

10

1

[246]

no

no

no

aye

no

no

aye

aye

no

aye

no

To strike out the word “of” and to substitute “in” after resident in the 2 sect. 4 article

4

7

[247]

no

no

no

no

no

no

aye

no

no

aye

aye

To postpone Mr motion in order to take up Mr Dickinsons

3

8

[248]

no

no

no

no

no

no

no

no

no

aye

aye

To insert the word “three”

2

9

[249]

no

no

no

aye

no

no

dd

no

aye

aye

aye

To add One year residence before the election

4

6

1

[250]

aye

aye

aye

aye

aye

aye

aye

aye

aye

aye

aye

To agree to ye 2 clause of ye 2 sect.

[251]

no

no

no

no

no

aye

no

no

aye

aye

aye

To give six representatives to So Carolina

4

7

[252]

aye

aye

aye

no

aye

no

aye

aye

aye

aye

aye

To alter the latter clause of the 4 sect. of the 4. Art. “according to the rule herein after provided for Direct taxation”

9

2

[253]

no

no

no

aye

no

no

no

no

no

no

no

To insert the word “free” before inhabitants 4 sect. 4 article

1

10

[254]

no

no

no

aye

aye

aye

aye

aye

no

aye

aye

To strike out the 5 section 4 article

7

4

MADISON Wednesday August. 8. In Convention

Art: IV. Sect. 1. — Mr. Mercer expressed his dislike of the whole plan, and his opinion that it never could succeed.2

Mr. Ghorum. He had never seen any inconveniency from allowing such as were not freeholders to vote, though it had long Edition: current; Page: [216] been tried. The elections in Phila. N. York & Boston where the Merchants, & Mechanics vote are at least as good as those made by freeholders only. The case in England was not accurately stated yesterday (by Mr. Madison) The Cities & large towns are not the seat of Crown influence & corruption. These prevail in the Boroughs, and not on account of the right which those who are not freeholders have to vote, but of the smallness of the number who vote. The people have been long accustomed to this right in various parts of America, and will never allow it to be abridged. We must consult their rooted prejudices if we expect their concurrence in our propositions.

Mr. Mercer did not object so much to an election by the people at large including such as were not freeholders, as to their being left to make their choice without any guidance. He hinted that Candidates ought to be nominated by the State Legislatures.

Col. Mason was for opening a wide door for emigrants; but did not chuse to let foreigners and adventurers make laws for us & govern us. Citizenship for three years was not enough for ensuring that local knowledge which ought to be possessed by the Representative. This was the principal ground of his objection to so short a term. It might also happen that a rich foreign Nation, for example Great Britain, might send over her tools who might bribe their way into the Legislature for insidious purposes. He moved that “seven” years instead of “three,” be inserted.4

Mr. Govr. Morris 2ded. the motion, & on the question, All the States agreed to it except Connecticut.

Mr. Sherman moved to strike out the word “resident” and insert “inhabitant,” as less liable to misconstruction.

Edition: current; Page: [217]

Mr M〈adison〉 2ded. the motion. both were vague, but the latter least so in common acceptation, and would not exclude persons absent occasionally for a considerable time on public or private business. Great disputes had been raised in Virga. concerning the meaning of residence as a qualification of Representatives which were determined more according to the affection or dislike to the man 〈in question〉, than 〈to〉 any fixt interpretation of the word.

Mr. Wilson preferred “inhabitant.”

Mr. Govr. Morris was opposed to both and for requiring nothing more than a freehold. He quoted great disputes in N. York occasioned by these terms, which were decided by the arbitrary will of the majority. Such a regulation is not necessary. People rarely chuse a nonresident — It is improper as in the 1st. branch, the people at large,5 not the States5 are represented.

Mr. Rutlidge urged & moved that a residence of 7 years shd. be required in the State Wherein the Member shd. be elected. An emigrant from N. England to S. C. or Georgia would know little of its affairs and could not be supposed to acquire a thorough knowledge in less time.

Mr. Read reminded him that we were now forming a Natil Govt and such a regulation would correspond little with the idea that we were one people.

Mr. Wilson — enforced the same consideration.

Mr. 〈Madison〉 suggested the case of new States in the West, which could have perhaps no representation on that plan.

Mr. Mercer. Such a regulation would present a greater alienship among the States than existed under the old federal system. It would interweave local prejudices & State distinctions in the very Constitution which is meant to cure them. He mentioned instances of violent disputes raised in Maryland concerning the term “residence”

Mr Elseworth thought seven years of residence was by far too long a term: but that some fixt term of previous residence Edition: current; Page: [218] would be proper. He thought one year would be sufficient, but seemed to have no objection to three years.

Mr. Dickenson proposed 〈that it should read〉 “inhabitant actually resident for — year.” This would render the meaning less indeterminate.

Mr. Wilson. If a short term should be inserted in the blank, so strict an expression might be construed to exclude the members of the Legislature, who could not be said to be actual residents in their States whilst at the Seat of the Genl. Government.

Mr. Mercer. It would certainly exclude men, who had once been inhabitants, and returning from residence elswhere to resettle in their original State; although a want of the necessary knowledge could not in such case be presumed.

Mr. Mason thought 7 years too long, but would never agree to part with the principle. It is a valuable principle. He thought it a defect in the plan that the Representatives would be too few to bring with them all the local knowledge necessary. If residence be not required, Rich men of neighbouring States, may employ with success the means of corruption in some particular district and thereby get into the public Councils after having failed in their own State. This is the practice in the boroughs of England.

On the question for postponing in order to consider Mr Dickinsons motion

Mr. Williamson liked the Report as it stood. He thought “resident” a good eno’ term. He was agst requiring any period of previous residence. New residents if elected will be most zealous to Conform to the will of their constituents, as their conduct will be watched with a more jealous eye.

Mr. Williamson moved to strike out “according to the provisions hereinafter made” and to insert 〈the〉 words 〈“according〉 “to the rule hereafter to be provided for direct taxation” — See Art VII. sect. 3.

Mr. King wished to know what influence the vote just passed was meant have on the succeeding part of the Report, concerning the admission of slaves into the rule of Representation. He could not reconcile his mind to the article if it was to prevent objections to the latter part. The admission of slaves was a most grating circumstance to his mind, & he believed would be so to a great part of the people of America. He had not made a strenuous opposition to it heretofore because he had hoped that this concession would have produced a readiness which had not been manifested, to strengthen the Genl. Govt. and to mark a full confidence in it. The Report under consideration had by the tenor of it, put an end to all these hopes. In two great points the hands of the Legislature were absolutely tied. The importation of slaves could not be prohibited — exports could not be taxed. Is this reasonable? What are the great objects of the Genl. System? 1. difence agst. foreign invasion. 2. agst. internal sedition. Shall all the States then be bound to defend each; & shall each be at liberty to introduce a weakness which will render defence more difficult? Shall one part of the U. S. be bound to defend another part, and that other part be at liberty not only to increase its own danger, but to withhold the compensation for the burden? If slaves are to be imported shall not the exports produced by their labor, supply a revenue the better to enable the Genl. Govt. to defend their Masters? — There was so much inequality & unreasonableness in all this, that the people of the N〈orthern〉 States could never be reconciled 〈to it〉. No candid man could undertake to justify it to them. He had hoped that some accommodation wd. have taken place on this subject; that at least a time wd. have been limited for the importation of slaves. He never could agree to let them be imported without limitation & then be represented in the Natl. Legislature. Indeed he could so little persuade himself of the rectitude of such a practice, that he was not sure he could assent to it under any circumstances. At all events, either slaves should not be represented, or exports should be taxable.

Mr. Sherman regarded the slave-trade as iniquitous; but Edition: current; Page: [221] the point of representation having been Settled after much difficulty & deliberation, he did not think himself bound to make opposition; especially as the present article as amended did not preclude any arrangement whatever on that point in another place of the Report.9

Mr. 〈Madison〉 objected to 1 for every 40,000 inhabitants 〈as a perpetual rule〉.10 The future increase of population if the Union shd. be permanent, will render the number of Representatives excessive.11

Mr. Ghorum. It is not to be supposed that the Govt will last so long as to produce this effect. Can it be supposed that this vast Country including the Western territory will 150 years hence remain one nation?

Mr. Elseworth. If the Govt. should continue so long, alterations may be made in the Constitution in the manner proposed in a subsequent article.

Mr Sherman & Mr. 〈Madison〉 moved to insert the words “not exceeding” before the words “1 for every 40,000, which was agreed to nem. con.

Mr Govr. Morris moved to insert “free” before the word “inhabitants.” Much he said would depend on this point. He never would concur in upholding domestic slavery. It was a nefarious institution — It was the curse of heaven on the States where it prevailed. Compare the free regions of the Middle States, where a rich & noble cultivation marks the prosperity & happiness of the people, with the misery & poverty which overspread the barren wastes of Va. Maryd. & the other States having slaves. 〈Travel thro’ ye whole Continent & you behold the prospect continually varying with the appearance & disappearance of slavery. The moment you leave ye E. Sts. & enter N. York, the effects of the institution become visible; Passing thro’ the Jerseys and entering Paevery criterion of superior improvement witnesses the change. Proceed Southwdly, & every step you take thro’ ye great Edition: current; Page: [222] regions of slaves, presents a desert increasing with ye increasing proportion of these wretched beings.〉12

Upon what principle is it that the slaves shall be computed in the representation? Are they men? Then make them Citizens & let them vote? Are they property? Why then is no other property included? The Houses in this City (Philada.) are worth more than all the wretched slaves which cover the rice swamps of South Carolina. The admission of slaves into the Representation when fairly explained comes to this: that the inhabitant of Georgia and S. C. who goes to the Coast of Africa, and in defiance of the most sacred laws of humanity tears away his fellow creatures from their dearest connections & dam〈n〉s them to the most cruel bondages, shall have more votes in a Govt. instituted for protection of the rights of mankind, than the Citizen of Pa or N. Jersey who views with a laudable horror, so nefarious a practice. He would add that Domestic slavery is the most prominent feature in the aristocratic countenance of the proposed Constitution. The vassalage of the poor has ever been the favorite offspring of Aristocracy. And What is the proposed compensation to the Northern States for a sacrifice of every principle of right, of every impulse of humanity. They are to bind themselves to march their militia for the defence of the S. States; for their defence agst those very slaves of whom they complain. They must supply vessels & seamen, in case of foreign Attack. The Legislature will have indefinite power to tax them by excises, and duties on imports: both of which will fall heavier on them than on the Southern inhabitants; for the bohea tea used by a Northern freeman, will pay more tax than the whole consumption of the miserable slave, which consists of nothing more than his physical subsistence and the rag that covers his nakedness. On the other side the Southern States are not to be restrained from importing fresh supplies of wretched Africans, at once to increase the danger of attack, and the difficulty of defence; nay they are to be encouraged to it by an assurance of having their votes in the Natl Govt increased Edition: current; Page: [223] in proportion. and are at the same time to have their exports & their slaves exempt from all contributions for the public service. Let it not be said that direct taxation is to be proportioned to representation. It is idle to suppose that the Genl Govt. can stretch its hand directly into the pockets of the people scattered over so vast a Country. They can only do it through the medium of exports imports & excises. For what then are all these sacrifices to be made? He would sooner submit himself to a tax for paying for all the Negroes in the U. States. than saddle posterity with such a Constitution.

Mr. Dayton 2ded. the motion. He did it he said that his sentiments on the subject might appear whatever might be the fate of the amendment.

Mr. Sherman. did not regard the admission of the Negroes into the ratio of representation, as liable to such insuperable objections. It was the freemen of the Southn. States who were in fact to be represented according to the taxes paid by them, and the Negroes are only included in the Estimate of the taxes. This was his idea of the matter.

Mr Pinkney, considered the fisheries & the Western frontier as more burdensome to the U. S. than the slaves — He thought this could be demonstrated if the occasion were a proper one.

Mr Wilson. thought the motion premature — An agreement to the clause would be no bar to the object of it.

Mr. Pinkney moved to strike out Sect. 5, As giving no peculiar advantage to the House of Representatives, and as clogging the Govt. If the Senate can be trusted with the many great powers proposed, it surely may be trusted with that of originating money bills.

Mr. Ghorum. was agst. allowing the Senate to originate; but 〈only〉 to amend.

Mr. Govr. Morris. It is particularly proper that the Senate shd. have the right of originating money bills. They will sit constantly. will consist of a smaller number. and will be able to prepare such bills with due correctness; and so as to prevent delay of business in the other House.

Col. Mason was unwilling to travel over this ground again. To strike out the section, was to unhinge the compromise of which it made a part. The duration of the Senate made it improper. He does not object to that duration. On the Contrary he approved of it. But joined with the smallness of the number, it was an argument 〈against〉 adding this to the other great powers vested in that body. His idea of an Aristocracy was that it was the governt. of the few over the many. An aristocratic body, like the screw in mechanics, workig. its way by slow degrees, and holding fast whatever it gains, should ever be suspected of an encroaching tendency — The purse strings should never be put into its hands.

Mr Mercer, considered the exclusive power of originating Money bills as so great an advantage, that it rendered the equality of votes in the Senate ideal & of no consequence.

Mr. Butler was for adhering to the principle which had been settled.

Mr. Wilson was opposed to it on its merits, with out regard to the compromise

Mr. Elseworth did not think the clause of any consequence, but as it was thought of consequence by some members from the larger States, he was willing it should stand.

Mr. 〈Madison〉 was for striking it out: considering it as of no advantage to the large States as fettering the Govt. and as a source of injurious altercations between the two Houses.

KING Wednesday 8 August —

4. A. 1 — c. The Qualifications of Electors — Gorham, The Qualifications stand well — Gentlemen who say that the Elections in the Cities are unsafe are in an Error — The Members of London, Bristol & Liverpool are as independent as any of the Members of the Shires — The King has no Influence in ye. City Elections — He buys the boroughs and he buys them of the Freeholders — there will be no Danger in allowing the Merchants & Mechanicks to be Electors — they have been Electors Time immemorial in this country as well as in England — We must regard the Habits & prejudices of the people — if you propose a window Tax in N. Eng. you wd. offend the people — If the minister in England shd. propose a poll-Tax he wd. also offend the People — so if you deprive the Mercht. & Mechank. of the Rights of Election you will offend them —

— 2d. Resident — proposed to change the word to Inhabitant — Morris G. proposed Freeholder — Rutledge — Resident for seven years in the State where he is elected — Mason — I am in favor of Residency — if you do not require it — a rich man may send down to the Districts of a state in wh. he does not reside and purchase an Election for his Dependt. We shall have the Eng. Borough corruption — a question was put & negatived by 8 of 11 states to insert Inhabitant for 3 yrs14 — afterwards the question for One yr. before Election was negatived by 6 of 11 — finally the wd. was established as it stands unanimously —15

Edition: current; Page: [226]

McHENRYAugust 8.

The 2 sect. of the IV. article was amended to read 7 insted of three years. It was proposed to add to the section “at least one year preceding his election”. negatived. Maryland divided. Mrs. Mercer and Carrol neg. Mr. Jenifer and myself aff.

The fifth section giving the sole power of raising and appropriating money to the house of representatives expunged.

Edition: current; Page: [227]

THURSDAY, AUGUST 9, 1787.

JOURNAL Thursday August 9. 1787.

On the question to agree to the 6 section of the 4. article as reported.

it passed in the affirmative

On the question to agree to the 7. section of the 4 article as reported

it passed in the affirmative

It was moved and seconded to insert the following words in the third clause of the 5 article after the word “executive”

“of the State, in the representation of which the vacancies shall happen”

which passed in the affirmative

It was moved and seconded to strike out the 3rd clause of the 1st section of the 5. article

It was moved and seconded to add the following words to the 3rd clause of the 1st section of the 5 article, namely

“unless other provision shall be made by the Legislature”

which passed in the negative [Ayes — 4; noes — 6.]

It was moved and seconded to alter the 3rd. clause in the 1st section of the 5. article so as to read as follows, namely

“vacancies happening by refusals to accept resignations or otherwise may be supplied by the Legislature of the State in the representation of which such vacancies shall happen or by the executive thereof until the next meeting of the Legislature”

Which passed in the affirmative

Edition: current; Page: [228]

On the motion to agree to the three first clauses of the 1st section of the 5th article

it passed in the affirmative [Ayes — 8; noes — 2; divided — 1.]

It was moved and seconded to postpone the consideration of the last clause in the first section of the 5. article

which was passed in the negative [Ayes — 2; noes — 8; divided — 1.]

On the question to agree to the last clause in the 1st section of the 5. article

it passed in the affirmative

It was moved and seconded to insert the following words after the word “after” in the 2nd section of the 5 article namely

“they shall be assembled in consequence of”

which passed in the affirmative

On the question to agree to the 2nd section of the 5. article as amended.

it passed in the affirmative

It was moved and seconded to strike out the word “four” and to insert the word “fourteen” in the 3 section of the 5 article

which passed in the negative [Ayes — 4; noes — 7.]

It was moved and seconded to strike out the word “four” and to insert the word “fourteen”2 in the 3 section of the 5 article

which passed in the negative [Ayes — 4; noes — 7.]

It was moved and seconded to strike out the word “four” and to insert the word “Ten” in the 3 section of the 5 article

which passed in the negative [Ayes — 4; noes — 7.]

It was moved and seconded to strike out the word “four” and to insert the word “nine” in the 3rd section of the 5 article

which passed in the affirmative [Ayes — 6; noes — 4; divided — 1.]

It was moved and seconded to amend the 3rd section of the 5 Edition: current; Page: [229] article by inserting the word “of” after the word “citizen” and the words “an inhabitant” instead of the words “a resident”

which passed in the affirmative

On the question to agree to the 3rd section of the 5 article as amended

it passed in the affirmative

On the question to agree to the 4th section of the 5. article as reported

it passed in the affirmative

It was moved and seconded to strike out the words “each House” and to insert the words “the House of representatives” in the 1st section of the 6th article

which passed in the negative [Ayes — 1; noes — 10.]

It was moved and seconded to insert the word “respectively” after the word “State” in the 1st section of the 6. article

which passed in the affirmative

It was moved and seconded to alter the second clause in the first section of the 6th article so as to read as follows namely

“but regulations in each of the foregoing cases may, at any time, be made or altered by the Legislature of the United States”

which passed in the affirmative

On the question to agree to the 1st section of the 6th article as amended

it passed in the affirmative.

And then the House adjourned till to-morrow at 11 o’Clock A. M.

Edition: current; Page: [230]

DETAIL OF AYES AND NOES

New Hampshire

Massachusetts

Rhode Island

Connecticut

New York

New Jersey

Pennsylvania

Delaware

Maryland

Virginia

North Carolina

South Carolina

Georgia

Questions

Ayes

Noes

Divided

[255]

no

no

no

no

aye

dd

no

no

no

no

To strike out the 3rd clause of the 1st sect. of the 5 article

1

8

1

[256]

no

no

no

no

no

aye

no

aye

aye

aye

To add the words to ye 1st sect 5 art. unless other provision shall be made by the Legislature

4

6

[257]

aye

no

aye

aye

aye

aye

aye

aye

no

dd

aye

To agree to the three first clauses of the 1st sect. of the 5 article

8

2

1

[258]

dd

no

no

no

no

no

no

aye

aye

no

no

To postpone the last clause in the 1st section of the 5 article

2

8

1

[259]

aye

no

no

aye

no

no

no

no

no

aye

aye

fourteen years citizenship to qualify to a seat in the Senate.

4

7

[260]

aye

no

no

aye

no

no

no

no

no

aye

aye

Thirteen years

4

7

[261]

aye

no

no

aye

no

no

no

no

no

aye

aye

Ten years

4

7

[262]

aye

no

no

aye

no

aye

no

aye

dd

aye

aye

Nine years.

6

4

1

[263]

no

no

no

aye

no

no

no

no

no

no

no

To strike out the words “each House” & to insert the words the Ho of representves in the 1st sect of the 6 article

1

10

MADISON Thursday. Augst. 9. in Convention

Art: IV. sect. 6. Mr. Randolph expressed his dissatisfaction at the disagreement yesterday to sect 5. concerning money bills, as endangering the success of the plan, and extremely objectionable in itself; and gave notice that he should move for a reconsideration of the vote.

Mr. Williamson said he had formed a like intention.

Mr. Wilson, gave notice that he shd. move to reconsider the vote, requiring seven instead of three years of Citizenship Edition: current; Page: [231] as a qualification of candidates for the House of Representatives.

Mr. Wilson objected to vacancies in the Senate being supplied by the Executives of the States. It was unnecessary as the Legislatures will meet so frequently. It removes the appointment too far from the people; the Executives in most of the States being elected by the Legislatures. As he had always thought the appointment of the Executives by the Legislative department wrong: so it was still more so that the Executive should elect into the Legislative department.

Mr. Randolph though it necessary 〈in order〉 to prevent inconvenient chasms in the Senate. In some States the Legislatures meet but once a year. As the Senate will have more power & consist of a smaller number than the other House, vacancies there will be of more consequence. The Executives might be safely trusted 〈he thought with the appointment for so short a time.〉

Mr. Elseworth. It is only said that the Executive may supply vacancies. When the Legislative meeting happens to be near, the power will not be exerted. As there will be but two members from a State vacancies may be of great moment.

Mr. Williamson. Senators may resign or not accept. This provision is therefore absolutely necessary.

On the question for striking out “vacancies shall be supplied by Executives

Mr. 〈Madison〉 in order to prevent doubts whether resignations could be made by Senators, or whether they could refuse to accept, moved to 〈strike out the words〉 after “vacancies”. 〈& insert〉 the words “happening by refusals to accept, resignations 〈or otherwise may be supplied by the Legislature of the State in the representation of which such vacancies shall happen, or by the Executive thereof until the next meeting of the Legislature”〉5

Mr. Govr. Morris this is absolutely necessary. otherwise, as members chosen into the Senate are disqualified from being appointed to any office by sect. 9. of this art: it will be in the power of a Legislature by appointing a man a Senator agst. his consent, to deprive the U. S. of his services.

The motion of Mr. 〈Madison〉 was agreed to nem. con.

Mr. Randolph called for a division of the Section, so as to leave a distinct question on the last words, “each 〈member〉6 shall have one vote”. He wished this last sentence to be postponed until the reconsideration should have taken place on sect. 5. Art. IV. concerning money bills. If that section should not be reinstated his plan would be to vary the representation in the Senate.

Mr. Strong concurred in Mr. Randolphs ideas on this point

Mr. Read did not consider the section as to money bills of any advantage to the larger States and had voted for striking Edition: current; Page: [233] it out as 〈being〉 viewed in the same light by the larger States. If it was considered by them as of any value, and as a condition of the equality of votes in the Senate, he had no objection to its being re-instated.

Mr. Wilson — Mr. Elseworth & Mr. — 〈Madison〉 urged that it was of 〈no〉 advantage to the larger States. and that it might be a dangerous source of contention between the two Houses. All the principal powers of the Natl. Legislature had some relation to money.

Docr. Franklin, considered the two clauses, the originating of money bills, and the equality of votes in the Senate, as essentially connected by the compromise which had been agreed to.

Col. Mason said this was not the time for discussing this point. When the originating of money bills shall be reconsidered, he thought it could be demonstrated that it was of essential importance to restrain the right to the House of Representatives the immediate choice of the people.

Mr. Williamson. The State of N. C. had agreed to an equality in the Senate, merely in consideration that money bills should be confined to the other House: and he was surprised to see the smaller States forsaking the condition on which they had received their equality.

Mr. Randolph moved that the last sentence “each 〈member〉7 shall have one vote.” be postponed

It was observed that this could not be necessary; as in case the section as to originating bills should not be reinstated, and a revision of the Constitution should ensue, it wd. still be proper that the members should 〈vote〉 per capita. A postponement of the preceding sentence allowing to each State 2 members wd. have been more proper.

Edition: current; Page: [234]

Mr. Mason, did not mean to propose a change of this mode of voting per capita in any event. But as there might be other modes proposed, he saw no impropriety in postponing the sentence. Each State may have two members, 〈and〉 yet may have 〈unequal〉8 votes. He said that unless the exclusive originating of money bills should be restored to the House of Representatives, he should, not from obstinacy, but duty and conscience, oppose throughout the equality of Representation in the Senate.

Mr. Govr. Morris. Such declarations were he supposed, addressed to the smaller States in order to alarm them for their equality in the Senate, and induce them agst. their judgments, to concur in restoring the section concerning money bills. He would declare in his turn that as he saw no prospect of amending the Constitution of the Senate & considered the Section 〈relating to money bills〉 as intrinsically bad, he would adhere to the section establishing the equality at all events.

Mr. Wilson. It seems to have been supposed by some that the section concerning money bills is desirable to the large States. The fact was that two of those States (Pa. & Va) had uniformly voted agst. it without reference to any other part of the system.

Mr. Randolph, urged as Col. Mason had done that the sentence under consideration was connected with that relating to money 〈bills〉, and might possibly be affected by the result of the motion for reconsidering the latter. That the postponement was therefore 〈not〉 improper.

Mr. Govr. Morris moved to insert 14 instead of 4 years citizenship as a qualification for Senators; urging the danger of admitting strangers into our public Councils. Mr. Pinkney 2ds. him

Mr. Elseworth. was opposed to the motion as discouraging meritorious aliens from emigrating to this Country.

Mr. Pinkney. As the Senate is to have the power of making treaties & managing our foreign affairs, there is peculiar danger and impropriety in opening its door to those who have foreign attachments. He quoted the jealousy of the Athenians on this subject who made it death for any stranger to intrude his voice into their legislative proceedings.

Col. Mason highly approved of the policy of the motion. Were it not that many not natives of this Country had acquired great merit during the revolution, he should be for restraining the eligibility into the Senate, to natives.

Mr. 〈Madison〉 was not averse to some restrictions on this subject; but could never agree to the proposed amendment. He thought any restriction 〈however〉 in the Constitution12 unnecessary, and improper. unnecessary; because the Natl. Legislre. is to have the right of regulating naturalization, and can by virtue thereof fix different periods of residence as conditions of enjoying different privileges of Citizenship: Improper: Edition: current; Page: [236] because it will give a tincture of illiberality to the Constitution: because it will put it out of the power of the Natl Legislature even by special acts of naturalization to confer the full rank of Citizens on meritorious strangers & because it will discourage the most desirable class of people from emigrating to the U. S. Should the proposed Constitution have the intended effect of giving stability & reputation to our Govts. great numbers of respectable Europeans; men who love liberty and wish to partake its blessings, will be ready to transfer their fortunes hither. All such would feel the mortification of being marked with suspicious incapacitations though they sd. not covet the public honors He was not apprehensive that any dangerous number of strangers would be appointed by the State Legislatures, if they were left at liberty to do so: nor that foreign powers would make use of strangers as instruments for their purposes. Their bribes would be expended on men whose circumstances would rather stifle than excite jealousy & watchfulness in the public.

Mr. Butler was decidely opposed to the admission of foreigners without a long residence in the Country. They bring with them, not only attachments to other Countries; but ideas of Govt. so distinct from ours that in every point of view they are dangerous. He acknowledged that if he himself had been called into public life within a short time after his coming to America, his foreign habits opinions & attachments would have rendered him an improper agent in public affairs. He mentioned the great strictness observed in Great Britain on this subject.

Docr. Franklin was not agst. a reasonable time, but should be very sorry to see any thing like illiberality inserted in the Constitution. The people in Europe are friendly to this Country. Even in the Country with which we have been lately at war, We have now & had during the war, a great many friends not only among the people at large but in both Houses of Parliament. In every other Country in Europe all the people are our friends. We found in the Course of the Revolution, that many strangers served us faithfully — and that many natives took part agst. their Country. When Edition: current; Page: [237] foreigners after looking about for some other Country in which they can obtain more happiness, give a preference to ours, it is a proof of attachment which ought to excite our confidence & affection.

Mr. Randolph did not know but it might be problematical whether emigrations to this Country were on the whole useful or not: but he could never agree to the motion for disabling them for 14 years to participate in the public honours. He reminded the Convention of the language held by our patriots during the Revolution, and the principles laid down in all our American Constitutions. Many foreigners may have fixed their fortunes among us under the faith of these invitations. All persons under this description with all others who would be affected by such a regulation, would enlist themselves under the banners of hostility to the proposed System. He would go as far as seven years, but no further.

Mr. Wilson said he rose with feelings which were perhaps peculiar; mentioning the circumstance of his not being a native, and the possibility, if the ideas of some gentlemen should be pursued, of his being incapacitated from holding a place under the very Constitution which he had shared in the trust of making. He remarked the illiberal complexion which the motion would give to the System, & the effect which a good system would have in inviting meritorious foreigners among us, and the discouragement & mortification they must feel from the degrading discrimination, now proposed. He had himself experienced this mortification. On his removal into Maryland, he found himself, from defect of residence, under certain legal incapacities, which never ceased to produce chagrin, though he assuredly did not desire & would not have accepted the offices to which they related. To be appointed to a place may be matter of indifference. To be incapable of being appointed, is a circumstance grating, and mortifying.

Mr. Govr. Morris. The lesson we are taught is that we should be governed as much by our reason, and as little by our feelings as possible. What is the language of Reason on this subject? That we should not be polite at the expense Edition: current; Page: [238] of prudence. There was a moderation in all things. It is said that some tribes of Indians, carried their hospitality so far as to offer to strangers their wives and daughters. Was this a proper model for us? He would admit them to his house, he would invite them to his table, would provide for them comfortable lodgings; but would not carry the complaisance so far as, to bed them with his wife. He would let them worship at the same altar, but did not choose to make Priests of them. He ran over the privileges which emigrants would enjoy among us, though they should be deprived of that of being eligible to the great offices of Government; observing that they exceeded the privileges allowed to foreigners in any part of the world; and that as every Society from a great nation down to a club had the right of declaring the conditions on which new members should be admitted, there could be no room for complaint. As to those philosophical gentlemen, those Citizens of the World, as they called themselves, He owned he did not wish to see any of them in our public Councils. He would not trust them. The men who can shake off their attachments to their own Country can never love any other. These attachments are the wholesome prejudices which uphold all Governments, Admit a Frenchman into your Senate, and he will study to increase the commerce of France: An Englishman, he will feel an equal bias in favor of that of England. It has been said that The Legislatures will not chuse foreigners, at least improper ones. There was no knowing what Legislatures would do. Some appointments made by them, proved that every thing ought to be apprehended from the cabals practised on such occasions. He mentioned the case of a foreigner who left this State in disgrace, and worked himself into an appointment from 〈another〉13 to Congress.

Question on the motion of Mr. Govr. Morris to insert 14 in place of 4 years

Dr. Franklin reminded the Convention that it did not follow from an omission to insert the restriction in the Constitution that the persons in question wd. be actually chosen into the Legislature.

Mr. Rutlidge. 7 years of Citizenship have been required for the House of Representatives. Surely a longer time is requisite for the Senate, which will have more power.

Mr. Williamson. It is more necessary to guard the Senate in this case than the other House. Bribery & Cabal can be more easily practised in the choice of the Senate which is to be made by the Legislatures composed of a few men, than of the House of Represents. who will be chosen by the people.

Mr. Randolph will agree to 9 years with the expectation that it will be reduced to seven if Mr. Wilson’s motion to reconsider the vote fixing 7 years for the House of Representatives should produce a reduction of that period.

Mr. 〈Madison〉 — & Mr. Govr. Morris moved to strike Edition: current; Page: [240] out “each House” & 〈to insert “the House of Representatives”;〉16 the right of the Legislatures to regulate the times & places &c. in 〈the election of Senators〉 being involved in the right of appointing 〈them〉, which was 〈disagreed to.〉17

Division of the question being called, it was taken on the first part down to “but their provisions concerning &c”

The first part was agreed to nem. con.

Mr. Pinkney & Mr. Rutlidge moved to strike out the remaining part viz but their provisions concerning them may at any time be altered by the Legislature of the United States.”18 The States they contended could & must be relied on in such cases.

Mr Ghorum. It would be as improper take this power from the Natl. Legislature, as to Restrain the British Parliament from regulating the circumstances of elections, leaving this business to the Counties themselves —

Mr 〈Madison〉. The necessity of a Genl. Govt. supposes that the State Legislatures will sometimes fail or refuse to consult the common interest at the expense of their local conveniency or prejudices. The policy of referring the appointment of the House of Representatives to the people and not to the Legislatures of the States, supposes that the result will be somewhat influenced by the mode, This view of the question seems to decide that the Legislatures of the States ought not to have the uncontrouled right of regulating the times places & manner of holding elections. These were words of great latitude. It was impossible to foresee all the abuses that might be made of the discretionary power. Whether the electors should vote by ballot or vivâ voce, should assemble at this place or that place; should be divided into districts or all meet at one place, shd all vote for all the representatives; or all in a district vote for a number allotted to the district; Edition: current; Page: [241] these & many other points would depend on the Legislatures. and might materially affect the appointments. Whenever the State Legislatures had a favorite measure to carry, they would take care so to mould their regulations as to favor the candidates they wished to succeed. Besides, the inequality of the Representation in the Legislatures of particular States, would produce a like inequality in their representation in the Natl. Legislature, as it was presumable that the Counties having the power in the former case would secure it to themselves in the latter. What danger could there be in giving a controuling power to the Natl. Legislature? Of whom was it to consist? 1. of a Senate to be chosen by the State Legislatures. If the latter therefore could be trusted, their representatives could not be dangerous. 2. of Representatives elected by the same people who elect the State Legislatures; surely then if confidence is due to the latter, it must be due to the former. It seemed as improper in principle — though it might be less inconvenient in practice, to give to the State Legislatures this great authority over the election of the Representatives of the people in the Genl. Legislature, as it would be to give to the latter a like power over the election of their Representatives in the State Legislatures.

Mr. King. If this power be not given to the Natl. Legislature, their right of judging of the returns of their members may be frustrated. No probability has been suggested of its being abused by them. Altho this scheme of erecting the Genl. Govt. on the authority of the State Legislatures has been fatal to the federal establishment, it would seem as if many gentlemen, still foster the dangerous idea.

Mr. Govr. Morris — observed that the States might make false returns and then make no provisions for new elections

Mr. Sherman did not know but it might be best to retain the clause, though he had himself sufficient confidence in the State Legislatures. 〈The motion of Mr. P. & Mr. R. did not prevail〉

On the motion of Mr Read the word “their” was struck out, & “regulations in such cases” inserted in place of “provisions concerning them”. 〈the clause then reading — “but regulations, in each of the foregoing cases may at any time, be made or altered by the Legislature of the U. S.〉20 This was meant to give the Natl. Legislature a power not only to alter the provisions of the States, but to make regulations in case the States should fail or refuse altogether.

Art. VI. Sect. 1 — as thus amended was agreed to nem. con.

Adjourned.

KING

5. Art. S. 1 — Wilson moves to strike out the clause authorising the State Executives to supply Vacancies in the Senate observing that the case may be safely lodged with the Senate — Randolph agt. the motion — because the Senate is the Br. where the Interest of the States will be deposited — They ought then to be constantly represented — in case of Treaty, or the election of Ambassadors, each state ought to be present — the State Legislatures may be in recess at the Time of a vacancy in the senate — If the place is not supplied the state may suffer a very great Inconvenience — Wilson — I think Legislators are improper Electors of the Executive — and so the Executive is an unqualified Elector of the Legislators —

G Morris

Liberal & illiberal — The terms are indefinite — The Indians are the most liberal, because when a Stranger comes among them they offer him yr. wife & Daughters for his carnal amusement —

It is said yt. we threw open our Doors — invited the oppressed of all Countries to come & find an Asylum in America — This is true we invited them to come and worship in our Temple but we never invited them to become Priests at our Altar — We shd. cherish the love of our country — This is a wholesome Edition: current; Page: [243] prejudice and is in favor of our Country — Foreigners will not learn our laws & Constitution under 14 yrs. — 7 yrs must be applied to learn to be a Shoe Maker — 14 at least are necessary to learn to be an Amer. Legislator —

Again — that period will be requisite to eradicate the Affections of Education and native Attachments —

Franklin — I am agt. the Term of 14 yrs — it looks illiberal — we have many good Friends in Engld. & other parts of Europe — they ought not to be excluded —

McHENRYAugust 9.

6 and 7 sects. agreed to without amendment.

The 1 section of the V article underwent an emendatory alteration. The last clause — “each member shall have one vote” — opposed by Mr. Mason, Randolph and a few others on account of the Senate by the loss of the 5 sect of the IV article having the same powers over money bills as the house of representatives. — The whole however was agreed to.

Sect. 2. agreed to after an emendatory addition.

Sect. 3 agreed to after inserting inhabitant for resident, as being less equivocal, and 9 years for 4 years.

Governeur Morris proposed insted of 4 years 14. He would have confined the members he said to natives — but for its appearance and the effects it might have against the system.

Mr. Mason had the same wishes, but he could not think of excluding those foreigners who had taken a part and borne with the country the dangers and burdenths of the war.

Mr. Maddison was against such an invidious distinction. The matter might be safely intrusted to the respective legislatures. Doctor Franklin was of the same opinion. Mr. Willson expressed himself feelingly on the same side. It might happen, he said, that he who had been thought worthy of Edition: current; Page: [244] being trusted with the framing of the Constitution, might be excluded from it. He had not been born in this country. He considered such exclusing as one of the most galling chains which the human mind could experience, It was wrong to deprive the government of the talents virtue and abilities of such foreigners as might chuse to remove to this country. The corrup of other countries would not come here. Those who were tired in opposing such corruptions would be drawn hither, etc. etc.

Sect. 4 agreed to.

Article VI.

Sect. 1. Agreed to with this amendment insted of “but their provisions concerning them.”

adjourned

Edition: current; Page: [245]

FRIDAY, AUGUST 10, 1787.

JOURNAL Friday August 10. 1787.

It was moved and seconded to strike out 2nd sect. of the 6. article in order to introduce the following namely

“That the qualifications of the members of the Legislature be as follows.

“The members of the House of representatives shall possess a clear and unincumbered property of

“The Members of the Senate”

which passed in the negative

It was moved and seconded to strike the following words out of the 2nd sect. of the 6. article, namely

“with regard to property”

which passed in the negative. [Ayes — 4; noes — 6.]

On the question to agree to the 2nd sect. of the 6. article as reported.

it passed in the negative. [Ayes — 3; noes — 7.]

It was moved and seconded to reconsider the 2nd sect. of the 4th article

which passed in the affirmative [Ayes — 6; noes — 5.]

and monday next was assigned for the reconsideration [Ayes — 9; noes — 2.]

It was moved and seconded to amend the 3rd sect. of the 6. article to read as follows, namely.

“not less than 33 members of the House of representatives, nor less that 14 members of the Senate, shall constitute a quorum to do business; a smaller number in either House may adjourn from day to day, but the number necessary to form such quorum may be encreased by an act of the Legislature on the addition of members in either branch”

It was moved and seconded to strike out the words “each House” and to insert the words “the House of representatives” in the second clause of the 7 sect of the 6 article — and to add the following words to the section, namely

“and any member of the Senate shall be at liberty to enter his dissent”

MADISON Friday Augst. 10. in Convention

Mr. Pinkney — The Committee as he had conceived were instructed to report the proper qualifications of property for the members of the Natl. Legislature; instead of which they have referred the task to the Natl. Legislature itself. Should it be left on this footing, the first Legislature will meet without any particular qualifications of property; and if it should happen to consist of rich men they might fix such such qualifications as may be too favorable to the rich; if of poor men, an opposite extreme might be run into. He was opposed to the establishment of an undue aristocratic influence in the Constitution but he thought it essential that the members of the Legislature, the Executive, and the Judges — should be possessed of competent property to make them independent & respectable. It was prudent when such great powers were to be trusted to connect the tie of property with that of reputation in securing a faithful administration. The Legislature would have the fate of the Nation put into their hands. The President would also have a very great influence on it. The Judges would have not only important causes between Citizen & Citizen but also where foreigners are concerned. They will even be the Umpires between the U. States and individual States as well as between one State & another. Were he to fix the quantum of property which should be required, he should not think of less than one hundred thousand dollars for the President, half of that sum for each of the Judges, and in like proportion for the members of the Natl. Legislature. He would however leave the sums blank. His motion was that the President of the U. S. the Judges, and members of the Legislature should be required to swear that they were respectively possessed of a clear unincumbered Edition: current; Page: [249] Estate to the amount of ——— in the case of the President, &c &c —

Mr. Rutlidge seconded the motion; observing, that the Committee had reported no qualifications because they could not agree on any among themselves, being embarrassed by the danger on 〈one〉 side of displeasing the people by making them 〈high〉, and on the other of rendering them nugatory by making them low.

Mr. Elseworth. The different circumstances of different parts of the U. S. and the probable difference between the present and future circumstances of the whole, render it improper to have either uniform or fixed qualifications. Make them so high as to be useful in the S. States, and they will be inapplicable to the E. States. Suit them to the latter, and they will serve no purpose in the former. In like manner what may be accommodated to the existing State of things among us, may be very inconvenient in some future state of them. He thought for these reasons that it was better to leave this matter to the Legislative discretion than to attempt a provision for it in the Constitution.

Doctr Franklin expressed his dislike of every thing that tended to debase the spirit of the common people. If honesty was often the companion of wealth, and if poverty was exposed to peculiar temptation, it was not less true that the possession of property increased the desire of more property- Some of the greatest rogues he was ever acquainted with, were the richest rogues. We should remember the character which the Scripture requires in Rulers, that they should be men hating covetousness- This Constitution will be much read and attended to in Europe, and if it should betray a great partiality to the rich- will not only hurt us in the esteem of the most liberal and enlightened men there, but discourage the common people from removing to this Country.

The Motion of Mr. Pinkney was rejected by so general a no, that the States were not called.

Mr 〈Madison〉 was opposed to the Section as vesting an improper & dangerous power in the Legislature. The qualifications of electors and elected were fundamental articles in a Edition: current; Page: [250] Republican Govt. and ought to be fixed by the Constitution. If the Legislature could regulate those of either, it can by degrees subvert the Constitution. A Republic may be converted into an aristocracy or oligarchy as well by limiting the number capable of being elected, as the number authorised to elect. In all cases where the representatives of the people will have a personal interest distinct from that of their Constituents, there was the same reason for being jealous of them, as there was for relying on them with full confidence, when they had a common interest. This was one of the former cases. It was as improper as to allow them to fix their own wages, or their own privileges. It was a power also, which might be made subservient to the views of one faction agst. another. Qualifications founded on artificial distinctions may be devised,7 by the stronger in order to keep out partizans of 〈a weaker〉8 faction.

Mr. Elseworth, admitted that the power was not unexceptionable; but he could not view it as dangerous. Such a power with regard to the electors would be dangerous because it would be much more liable to abuse.

Mr. Govr. Morris moved to strike out “with regard to property” in order to leave the Legislature entirely at large.

Mr. Williamson. This could surely never be admitted. Should a majority of the Legislature be composed of any particular description of men, of lawyers for example, which is no improbable supposition, the future elections might be secured to their own body.

Mr. 〈Madison〉 observed that the British Parliamt. possessed the power of regulating the qualifications both of the electors, and the elected; and the abuse they had made of it was a lesson worthy of our attention. They had made the changes in both cases subservient to their own views, or to the views of political or Religious parties.

Mr Rutlidge was opposed to leaving the power to the Legislature- He proposed that the qualifications should be the same as for members of the State Legislatures.

Mr. Wilson thought it would be best on the whole to let the Section go out. A uniform rule would probably be never fixed by the Legislature. and this particular power would constructively exclude every other power of regulating qualifications-

Mr. Ghorum contended that less than a Majority 〈in each House〉 should be made of Quorum, otherwise great delay might happen in business, and great inconvenience from the future increase of numbers.

Mr. Mercer was also for less than a majority. So great a number will put it in the power of a few by seceding at a critical moment to introduce convulsions, and endanger the Governmt. Examples of secession have already happened in some of the States. He was for leaving it to the Legislature to fix the Quorum, as in Great Britain, where the requisite number is small & no inconveniency has been experienced.

Col. Mason. This is a valuable & necessary part of the plan. In this extended Country, embracing so great a diversity of interests, it would be dangerous to the distant parts to Edition: current; Page: [252] allow a small number of members of the two Houses to make laws. The Central States could always take care to be on the Spot and by meeting earlier than the distant ones, or wearying their patience, and outstaying them, could carry such measures as they pleased. He admitted that inconveniences might spring from the secession of a small number: But he had also known good produced by an apprehension of it. He had known a paper emission prevented by that cause in Virginia. He thought the Constitution as now moulded was founded on sound principles, and was disposed to put into it extensive powers. At the same time he wished to guard agst abuses as much as possible. If the Legislature should be able to reduce the number at all, it might reduce it as low as it pleased & the U. States might be governed by a Juncto- A majority of the number which had been agreed on, was so few that he feared it would be made an objection agst. the plan.

Mr. King admitted there might be some danger of giving an advantage to the Central States; but was of opinion that the public inconveniency on the other side was more to be dreaded.

Mr. Govr. Morris moved to fix the quorum at 33 members in the H. of Reps. & 14 in the Senate. This is a majority of the present number, and will be a bar to the Legislature: fix the number low and they will generally attend knowing that advantage may be taken of their absence. the Secession of a small number ought not to be suffered to break a quorum. Such events in the States may have been of little consequence. In the national Councils, they may be fatal. Besides other mischiefs, if a few can break up a quorum, they may sieze a moment when a particular 〈part〉 of the Continent may be in need of immediate aid, to extort, by threatening a secession, some unjust & selfish measure.

Mr. Mercer 2ded. the motion

Mr. King said he had just prepared a motion11 which instead of fixing the numbers proposed by Mr. Govr Morris as Quorums, made those the lowest numbers, leaving the Edition: current; Page: [253] Legislature at liberty to increase them or not. He thought the future increase of members would render a majority of the whole extremely cumbersome.

Mr. Mercer agreed to substitute Mr. Kings motion in place of Mr. Morris’s.

Mr. Elseworth was opposed to it. It would be a pleasing ground of confidence to the people that no law or burden could be imposed on them, by a few men. He reminded the movers that the Constitution proposed to give such a discretion with regard to the number of Representatives that a very inconvenient number was not to be apprehended. The inconveniency of secessions may be guarded agst by giving to each House an authority to require the attendance of absent members.

Mr. Wilson concurred in the sentiments of Mr. Elseworth.

Mr. Gerry seemed to think that some further precautions than merely fixing the quorum might be necessary. He observed that as 17 wd. be a majority of a quorum of 33, and 8 of 14, questions might by possibility be carried in the H. of Reps. by 2 large States, and in the Senate by the same States with the aid of two small ones. — He proposed that the number for a quorum in the H. of Reps. should not exceed 50 〈nor be less than 33〉. leaving the intermediate discretion to the Legislature.

Mr. King. as the quorum could not be altered witht. the concurrence of the President by less than ⅔ of each House, he thought there could be no danger in trusting the Legislature.

Mr Carrol this will be no security agst. a continuance of the quorums at 33 & 14. when they ought to be increased.

On question on Mr. Kings motion 〈“that not less than 33 in the H. of Reps. nor less than 14 in the Senate shd. constitute a Quorum, which may be increased by a law, on additions of members in either House.〉12

Mr. Randolph & Mr. — 〈Madison〉 moved to add to the Edition: current; Page: [254] end of Art. VI Sect 3, “and 〈may〉 be authorized to compel the attendance of absent members in such manner & under such penalties as each House may provide.” Agreed to 〈by all except Pena — which was divided〉13

Article VI, Sect. 4. “Each House shall be the judge of the elections, returns and qualifications of its own members.”

Sect. 5. “Freedom of speech and debate in the Legislature shall not be impeached or questioned in any Court or place out of the Legislature; and the members of each House shall, in all cases, except treason felony and breach of the peace, be privileged from arrest during their attendance at Congress, and in going to and returning from it.”

Mr. 〈Madison〉 observed that the right of expulsion (Art. VI. Sect. 6.)15 was too important to be exercised by a bare majority of a quorum: and in emergencies of faction might be dangerously abused. He moved that “with the concurrence of ⅔” might be inserted between may & expel.

Mr. Randolph & Mr. Mason approved the idea.

Mr Govr Morris. This power may be safely trusted to a majority. To require more may produce abuses on the side of the minority. A few men from factious motives may keep in a member who ought to be expelled.

Mr. Carrol thought that the concurrence of ⅔ at least ought to be required.

Mr. Govr Morris urged that if the yeas & nays were proper at all any individual ought to be authorized to call for them: and moved an amendment to that effect. — The small States may otherwise be under a disadvantage, and find it difficult. to get a concurrence of ⅙

Mr. Randolph 2ded. ye motion.

Mr. Sherman had rather strike out the yeas & nays altogether. they never have done any good, and have done much mischief. They are not proper as the reasons governing the voter never appear along with them.

Mr Elseworth was of the same opinion

Col. Mason liked the Section as it stood. it was a middle way between two extremes.

Mr Ghorum was opposed to the motion for allowing a single member to call the yeas & nays, and recited the abuses of it, in Massts. 1 in stuffing the journals with them on frivolous occasions. 2 in misleading the people who never know the reasons determining the votes.

The motion for allowing a single member to call the yeas & nays was disagd. to nem- con-

Mr. Carrol & Mr. Randolph moved 〈to strike out the words “each House” and to insert the words “the House of Representatives” in sect- 7. art- 6. and to add to the Section the words “and any member of the Senate shall be at liberty to enter his dissent”〉17

Mr. Govr Morris & Mr Wilson observed that if the minority were to have a right to enter their votes & reasons, the other side would have a right to complain, if it were not extended to them: & to allow it to both, would fill the Journals, like the records of a Court, with replications, rejoinders &c-

Question on Mr Carrols motion to allow a member to 〈enter his〉 dissent

Mr Gerry moved to strike out the words “when it shall Edition: current; Page: [256] be acting in its legislative capacity” in order to extend the provision to the Senate when exercising its peculiar authorities 〈and to insert “except such parts thereof as in their judgment require secrecy” after the words “publish them”〉. — (It was thought by others that provision should be made with respect to these when that part came under consideration which proposed to vest those 〈additional〉 authorities in the Senate.)

On this question for striking out the words “when acting in its Legislative capacity”

McHENRYAugust 10.

SATURDAY, AUGUST 11, 1787.

JOURNAL Saturday August 11. 1787.

It was moved and seconded to amend the first clause of the 7 sect. of the 6 article to read as follows namely

“Each House shall keep a Journal of it’s proceedings, and shall from time to time publish the same; except such part of the proceedings of the Senate when acting not in it’s Legislative capacity as may be judged by that House to require secrecy”

“nor to any other place than that at which the two Houses are sitting” 8 sect. 6 article Ayes — 10; noes — 1.]4 It was moved and seconded to alter the 8th sect. of the 6. article to read as follows, namely,

“The Legislature shall at their first assembling determine on a place at which their future Sessions shall be held: neither House shall afterwards, during the Session of the House of Representatives, without the consent of the other, adjourn for more than three days, nor shall they adjourn to any other place than such as shall have been fixed by law”

which passed in the negative

It was moved and seconded to prefix the following words to the 8 sect. of the 6 article, namely

It was moved and seconded to reconsider the 5. sect. of the 4. article

which passed in the affirmative [Ayes — 8; noes — 2;

divided — 1.]

and monday next was assigned for the reconsideration And then the House adjourned till Monday next at 11 o’Clock A. M.

Edition: current; Page: [259]

DETAIL OF AYES AND NOES

New Hampshire

Massachusetts

Rhode Island

Connecticut

New York

New Jersey

Pennsylvania

Delaware

Maryland

Virginia

North Carolina

South Carolina

Georgia

Questions

Ayes

Noes

Divided

[273]

no

no

no

no

no

no

no

aye

no

no

no

To agree to Mr Madison’s amendmt

1

10

[274]

no

aye

aye

no

no

no

no

no

no

no

no

except such parts thereof relative to Treaties & military operations.

2

9

[275]

aye

aye

aye

aye

aye

aye

aye

aye

aye

aye

aye

On the 1st clause of the 7 sect. of the 6 article as reported

11

[276]

dd

aye

aye

aye

no

no

no

aye

aye

no

aye

except such parts thereof as in their judgment require secrecy.

6

4

1

[277]

aye

aye

aye

aye

aye

aye

aye

aye

aye

aye

aye

To agree to the last clause of the 7 sect of the 6 art.

[278]

no

aye

no

aye

aye

no

no

aye

no

no

no

To commit the 2nd clause of the 7 sect. 6 art.

4

7

[279]

aye

aye

aye

aye

aye

aye

aye

no

aye

aye

aye

“nor to any other place than that at which the two Houses are sitting” 8 sect. 6 article

10

1

[280]

aye

aye

aye

no

aye

aye

no

aye

aye

dd

aye

To reconsider 5 sect 4 article Monday assigned

8

2

1

MADISON Saturday Augst. 11. in Convention

Mr 〈Madison〉 & Mr. Rutlidge moved “that each House shall keep a journal of its proceeding, & 〈shall〉 publish the same from time to time; except such 〈part〉 of the proceedings of the Senate, when acting not in its Legislative capacity as may 〈be judged by〉 that House 〈to〉 require secrecy.”

Mr. Mercer. This implies that other powers than legislative will be given to the Senate which he hoped would not be given.

Edition: current; Page: [260]

Mr. M〈adison〉 & Mr. R’s motion. was disagd. to by all the States except Virga.

Mr. Gerry & Mr. Sharman moved to insert after the words “publish them” the following “except such as relate to treaties & military operations.” Their object was to give each House a discretion in such cases. — On this question

Mr. Elseworth. As the clause is objectionable in so many shapes, it may as well be struck out altogether.7 The Legislature will not fail to publish their proceedings from time to time — The 〈people〉 will call for it if it should be improperly omitted.

Mr. Wilson thought the expunging of the clause would be very improper. The people have a right to know what their Agents are doing or have done, and it should not be in the option of the Legislature to conceal their proceedings. Besides as this is a clause in the existing confederation, the not retaining it would furnish the adversaries of the reform with a pretext by which weak & suspicious minds may be easily misled.

Mr. Mason thought it would give a just alarm to the people, to make a conclave of their Legislature.

Mr. Sherman thought the Legislature might be trusted in this case if in any.

Question on 1st. part of the Section, down to “publish them” inclusive: Agreed to nem. con.

Mr. King remarked10 that the section authorized the 2 Houses to adjourn to a new place. He thought this inconvenient. The mutability of place had dishonored the federal Govt. and would require as strong a cure as we could devise. He thought a law at least should be 〈made〉 necessary to a removal of the Seat of Govt.

Mr 〈Madison〉 viewed the subject in the same light, and joined with Mr. King in a motion requiring a law.

Mr. Spaight. this will fix the seat of Govt at N. Y. 〈The present〉 Congress will convene them there in the first instance, and they will never be able to remove; especially if the Presidt. should be Northern Man.

Mr Govr Morris. such a distrust is inconsistent with all Govt.

Mr. 〈Madison〉 supposed that a central place for the Seat of Govt. was so just and wd. be so much insisted on by the H. of Representatives, that though a law should 〈be made requisite for〉11 the purpose, it could & would be attained. The necessity of a central residence of the Govt wd be much greater under the new than old Govt The members of the 〈new〉 Govt wd. be more numerous. They would be taken more from the interior parts of the States: they wd. not, like members of 〈ye present〉 Congs. come so often from the distant States by water. As the powers & objects of the new Govt. would be far greater 〈yn. heretofore〉, more private individuals wd. have business calling them to the seat of it, and it was more necessary that the Govt should be in that position from which it could contemplate, with the most equal eye, and sympathize most equally with, every part of the nation. These considerations he supposed would extort a removal even if a law were made necessary. But in order to quiet suspicions both within & without doors, it might not be Edition: current; Page: [262] amiss to authorize the 2 Houses by a concurrent vote to adjourn at their first meeting to the most proper place, and to require thereafter, the sanction of a law to their removal. 〈The motion was accordingly moulded into the following form:12 “the Legislature shall at their first assembling determine on a place at which their future sessions shall be held; neither House shall afterwards, during the session of the House of Reps. without the consent of the other, adjourn for more than three days, nor shall they adjourn to any other place than such as shall have been fixt by law”〉

Mr. Gerry thought it would be wrong to let the Presidt check the will of the 〈2〉 Houses on this subject 〈at all.〉

Mr Williamson supported the ideas of Mr. Spaight

Mr Carrol was actuated by the same apprehensions

Mr. Mercer. it will serve no purpose to require the two Houses at their first Meeting to fix on a place. They will never agree.

After some further expressions from others denoting an apprehension that the seat of Govt. might be continued at an improper place if a law should be made necessary to a removal, and 〈the〉 motion 〈above stated with another〉 for recommitting the section 〈had been〉 negatived, the Section was left in the shape it 〈which it was reported, as to this point. The words “during the session of the legislature were prefixed to the 8th section — and the last sentence “But this regulation shall not extend to the Senate when it shall exercise the powers mentioned in the article” struck out. The 8th. section as amended was then agreed to.〉13

Mr. Randolph moved according to notice to reconsider Art: IV: Sect. 5. concerning money-bills which had been struck out. He argued14 1. that he had not wished for this privilege whilst a proportional Representation in the Senate was in contemplation. but since an equality had been fixed in that Edition: current; Page: [263] house, the large States would require this compensation at least. 2. that it would make the plan more acceptable to the people, because they will consider the Senate as the more aristocratic body, and will expect that the usual guards agst its influence be provided according to the example in G. Britain. 3. the privilege will give some advantage to the House of Reps. if it extends to the originating only — but still more, if it restrains the Senate 〈from〉 amend〈g〉15 4. he called on the smaller States to concur in the measure, as the condition by which alone the compromise had entitled them to an equality in the Senate. He signified that he should propose instead of the original Section, a clause specifying that the bills in question should be for the purpose of Revenue, in order to repel ye. objection agst. the extent of the words “raising money,” which might happen incidentally, and that the Senate should not so amend or alter as to increase or diminish the sum; in order to obviate the inconveniences urged agst. a restriction of the Senate to a simple affirmative or negative.

Mr. Williamson 2ded. the motion

Mr. Pinkney was sorry to oppose the opportunity gentlemen asked to have the question again opened for discussion, but as he considered it a mere waste of time he could not bring himself to consent to it. He said that notwithstanding what had been said as to the compromise, he always considered this section as making no part of it. The rule of Representation in the 1st. branch was the true condition of that in the 2d. branch. — Several others spoke for & agst the reconsideration, but without going into the merits — on the Question to reconsider

McHENRYAugt. 11.

Sect. 7 agreed to after expunging the words “when it shall be acting in a legislative capacity” and inserting after the words “publish them” except such parts as in their judgement require secrecy —

After much debate agreed to reconsider on monday the 5 sect. of the 4 article.

Edition: current; Page: [265]

MONDAY, AUGUST 13, 1787.

JOURNAL Monday August 13. 1787.

It was moved and seconded to strike out the word “seven” and to insert the word “four” in the 2nd sect. of the 4 article It was moved and seconded to strike out the word “seven” and to insert the word “nine” in the 2nd sect. of the 4 article It was moved and seconded to strike out the words “shall have been a citizen of the United States for at least seven years before his election” and to insert between the words “an” and “inhabitant” the words “Citizen and” in the 2nd sect. of the 4 article

It was moved and seconded to amend the 5. sect of the 4. article to read as follows, namely,

“all bills for raising money for the purposes of revenue, or for appropriating the same, shall originate in the House of representatives; and shall not be so altered or amended by the Senate, as to encrease or diminish the sum to be raised, or change the mode of raising or the objects of it’s appropriation”

MADISON Monday. Augst. 13. In Convention

Mr. Wilson & Mr. Randolph moved to strike out “7 years” and insert “4 years,” as the requisite term of Citizenship to qualify for the House of Reps. Mr. Wilson said it was very proper the electors should govern themselves by this consideration; but unnecessary & improper that the Constitution should chain them down to it.

Mr. Gerry wished that in future the eligibility might be confined to Natives. Foreign powers will intermeddle in our affairs, and spare no expence to influence them. Persons having foreign attachments will be sent among us & insinuated into our councils, in order to be made instruments for their purposes. Every one knows the vast sums laid out in Europe for secret services — He was not singular in these ideas. A great many of the most influential men in Massts. reasoned in the same manner.

Mr. Williamson moved to insert 9 years instead of seven. He wished this Country to acquire as fast as possible national habits. Wealthy emigrants do more harm by their luxurious examples, than good, by the money, they bring with them.

Col. Hamilton was in general agst. embarrassing the Govt. with minute restrictions. There was on one side the possible danger that had been suggested — on the other side, the advantage of encouraging foreigners was obvious & admitted. Persons in Europe of moderate fortunes will be fond of coming here where they will be on a level with the first Citizens. He moved that the section be so altered as to require merely Citizenship & inhabitancy. The right of determining the rule of naturalization will then leave a discretion to the Legislature on this subject which will answer every purpose.

Mr 〈Madison〉 seconded the motion. He wished to maintain the character of liberality which had been professed in all the Constitutions & publications of America. He wished to invite foreigners of merit & republican principles among us. America was indebted to emigration for her settlement & Prosperity. That part of America which had encouraged them most had advanced most rapidly in population, agriculture & the arts. There was a possible danger he admitted that men with foreign predilections might obtain appointments Edition: current; Page: [269] but it was by no means probable that it would happen in any dangerous degree. For the same reason that they would be attached to their native Country, our own people wd. prefer natives of this Country to them. Experience proved this to be the case. Instances were rare of a foreigner being elected by the people within any short space after his coming among us — If bribery was to be practised by foreign powers, it would not be attempted among the electors, but among the elected; and among natives having full Confidence of the people not among strangers who would be regarded with a jealous eye.

Mr. Wilson. Cited Pennsylva. as a proof of the advantage of encouraging emigrations. It was perhaps the youngest (except Georgia) settlemt. on the Atlantic; yet it was at least among the foremost in population & prosperity. He remarked that almost all the Genl. officers of 〈the〉 Pena. line 〈of the late army〉 were foreigners. And no complaint had ever been made against their fidelity or merit. Three of her deputies to the Convention (Mr. R. Morris, Mr. Fitzsimmons & himself) were also not natives. He had no objection to Col. Hamiltons motion & would withdraw the one made by himself.7

Mr. Govr. Morris moved to add to the end of the section (art IV. s. 2) a proviso that the limitation 〈of seven years〉 should not affect 〈the rights of〉 any person now a Citizen.8

Mr. Mercer 2ded. the motion. It was necessary he said to prevent a disfranchisement of persons who had become Citizens under the faith 〈& according to〉 — the laws & Constitution 〈from〉 being on a level in all respects with natives.

Mr. Rutlidge. It might as well be said that all qualifications are disfranchisemts. and that to require the age of 25 years was a disfranchisement. The policy of the precaution was as great with regard to foreigners now Citizens; as to those who are to be naturalized in future.

Mr Sherman. The U. States have not invited foreigners nor pledged their faith that they should enjoy equal privileges with native Citizens. The Individual States alone have done this. The former therefore are at liberty to make any discriminations they may judge requisite.

Mr. Ghorum. When foreigners are naturalized it wd. seem as if they stand on an equal footing with natives. He doubted then the propriety of giving a retrospective force to the restriction.

Mr. 〈Madison〉 animadverted on the peculiarity of the doctrine of Mr. Sharman. It was 〈a subtilty〉 by which every national engagement might be evaded. By parity of reason, Whenever our public debts, or foreign treaties become inconvenient nothing 〈more〉 would be necessary to relieve us from them, than to9 new model the Constitution. It was said that the U. S. as such have not pledged their faith to the naturalized foreigners, & therefore are not bound. Be it so, & that the States alone are bound. Who are to form the New Constitution by which the condition of that class of citizens is to be made worse than the other class? Are not the States ye agents? will they not be the members of it? Did they not appoint this Convention? Are not they to ratify its proceedings? Will not the new Constitution be their Act? If the new Constitution then violates the faith pledged to any Edition: current; Page: [271] description of people will not the makers of it, will not the States, be the violators. To justify the doctrine it must be said that the States can get rid of their obligation by revising the Constitution, though they could not do it by repealing the law under which foreigners held their privileges. He considered this a matter of real importance. It would expose us to the reproaches of all those who should be affected by it, reproaches which wd. soon be echoed from the other side of the Atlantic; and would unnecessarily enlist among the Adversaries of the reform a very considerable body of Citizens: We should moreover reduce every State to the dilemma of rejecting it or of violating the faith pledged to a part of its citizens.

Mr. Govr. Morris10 considered the case of persons under 25 years, as very different from that of foreigners. No faith could be pleaded by the former in bar of the regulation. No assurance had ever been given that persons under that age should be in all cases on a level with those above it. But with regard to foreigners among us, the faith had been pledged that they should enjoy the privileges of Citizens. If the restriction as to age had been confined to natives, & had left foreigners under 25 years, eligible in this case, the discrimination wd. have been an equal injustice on the other side.

Mr. Pinkney remarked that the laws of the States had varied much the terms of naturalization in different parts of America; and contended that the U. S. could not be bound to respect them on such an occasion as the present. It was a sort of recurrence to first principles.

Col- Mason was struck not like (Mr. 〈Madison〉), with the peculiarity,11 but the propriety11 of the doctrine of Mr. Sharman. The States have formed different qualifications themselves, for enjoying different rights of citizenship. Greater caution wd. be necessary in the outset of the Govt. than afterwards. All the great objects wd. be then provided for. Every thing would be then set in Motion. If persons among us attached to G- B. should work themselves into our Councils, a turn might be given to our affairs & particularly to our Commercial Edition: current; Page: [272] regulations which might have pernicious consequences. The great Houses of British Merchants would spare no pains to insinuate the instruments of their views 〈into the Govt —〉

Mr. Wilson read the clause in the Constitution of Pena. giving to foreigners after two years residence all the rights whatsoever of Citizens, combined it with the Article of Confederation making the Citizens of one State Citizens of all, inferred the obligation Pena. was under to maintain the faith thus pledged to her citizens of foreign birth, and the just complaints which her failure would authorize: He observed likewise that the Princes & States of Europe would avail themselves of such breach 〈of faith〉 to deter their subjects from emigrating to the U. S.12

Mr. Mercer enforced the same idea of a breach of faith.

Mr. Baldwin could 〈not〉 enter into the force of the arguments agst. extending the disqualification to foreigners now Citizens. The discrimination of the place of birth, was not more objectionable than that of age which all had concurred in the propriety of.

Question on the proviso of Mr Govr. Morris in favor of foreigners now Citizens

Mr. Randolph moved that the clause be altered so as to read — “Bills for raising money for the purpose of revenue 〈or for appropriating the same shall originate in the House of Representatives〉 and shall not be 〈so〉 amended or altered by the Senate as to increase or diminish the sum to be raised, or change the mode of levying it, or the object of its appropriation.”15a — He would not repeat his reasons, but barely remind the members from the smaller States of the compromise by which the larger States were entitled to this privilege.

Col. Mason. This amendment removes all the objections urged agst. the section as it stood at first. By specifying purposes of revenue, it obviated the objection that the Section extended to all bills under which money might incidentally arise. By authorizing amendments in the Senate it got rid of the objections that the Senate could not correct errors of any sort, & that it would introduce into the House of Reps. the practice of tacking foreign matter to money bills: These objections being removed, the arguments in favor of the proposed restraint on the Senate ought to have their full force. 1. the Senate did not represent the people, but the States in their political character. It was improper therefore that it should tax the people. The reason was the same agst. their doing it; as it had been agst. Congs. doing it. Nor was it in any respect necessary in order to cure the evils of our Republican system. He admitted that notwithstanding the superiority of the Republican form over every other, it had its evils. The chief ones, were the danger of the majority oppressing the minority, and the mischievous influence of demagogues. The Genl. Government of itself will cure these. As the States will not concur at the same time in their unjust & oppressive plans, the general Govt. will be able to check & Edition: current; Page: [274] defeat them, whether they result from the wickedness of the majority, or from the misguidance of demagogues. Again, the Senate is not like the H. of Reps. chosen frequently and obliged to return frequently among the people. They are to be chosen by the Sts for 6 years, will probably settle themselves at the seat of Govt. will pursue schemes for their own aggrandizement — will be able by wearyg out the H. of Reps and taking advantage of their impatience at the close of a long Session, to extort measures for that purpose. If they should be paid as he expected would be yet determined & wished to be so, out of the Natl. Treasury, they will particularly extort an increase of their wages. A bare negative was a very different thing from that of originating bills. The practice in Engld was in point. The House of Lords does not represent nor tax the people, because not elected by the people. If the Senate can originate, they will in the recess of the Legislative Sessions, hatch their mischievous projects, for their own purposes, and have their money bills ready cut & dried, (to use a common phrase) for the meeting of the H. of Reps. He compared the case to Poyning’s law — and signified that the House of Reps. might be rendered by degrees like the Parliament of Paris, the mere depository of the decrees of the Senate. As to the compromise so much had passed on that subject that he would say nothing about it. He did not mean by what he had said to oppose the permanency of the Senate. On the contrary he had no repugnance to an increase of it — nor to allowing it a negative, though the Senate was not by its present constitution entitled to it. But in all events he would contend that the pursestrings should be in the hands of the Representatives of the people.

Mr. Wilson was himself directly opposed to the equality of votes granted to the Senate by its present Constitution. At the same time he wished not to multiply the vices of the system. He did not mean to enlarge on a subject which had been so much canvassed, but would remark as an insuperable objection agst. the proposed restriction of money bills to the H. of Reps. that it would be a source of perpetual contentions where there was no mediator to decide them. The Presidt. Edition: current; Page: [275] here could not like the Executive Magistrate in England interpose by a prorogation, or dissolution. This restriction had been found pregnant with altercation in every State where the Constitution had established it. The House of Reps. will insert the other things in money bills, and by making them conditions of each other, destroy the deliberate liberty of the Senate. He stated the case of a Preamble to a money bill sent up by the House of Commons in the reign of Queen Anne, to the H. of Lords, in which the conduct of the displaced Ministry, who were to be impeached before the Lords, was condemned; the Commons thus extorting a premature judgmt. without any hearing of the Parties to be tried, and the H. of Lords being thus reduced to the poor & disgraceful expedient of opposing to the authority of a law a protest on their Journals agst. its being drawn into precedent. If there was any thing like Poynings law in the present case, it was in the attempt to vest the exclusive right of originating in the H. of Reps. and so far he was agst it. He should be equally so if the right were to be exclusively vested in the Senate. With regard to the pursestrings, it was to be observed that the purse was to have two strings, one of which was in the hands of the H. of Reps. the other in those of the Senate. Both houses must concur in untying, and of what importance could it be which untied first, which last. He could not conceive it to be any objection to the senate’s preparing the bills, that they would have leisure for that purpose and would be in the habits of business. War, Commerce, & Revenue were the great objects of the Genl. Government. All of them are connected with money. The restriction in favor of the H. of Represts. would exclude the Senate from originating any important bills whatever —

Mr. Gerry. considered this as a part of the plan that would be much scrutinized. Taxation & representation are strongly associated in the minds of the people, and they will not agree that any but their immediate representatives shall meddle with their purses. In short the acceptance of the plan will inevitably fail, if the Senate be not restrained from originating Money bills.

Edition: current; Page: [276]

Mr. Govermr. Morris All the arguments suppose the right to originate & to tax, to be exclusively vested in the Senate. — The effects commented on may be produced by a Negative only in the Senate. They can tire out the other House, and extort their concurrence in favorite measures, as well by withholding their negative, as by adhering to a bill introduced by themselves.

Mr. 〈Madison thought〉 If the substitute offered by Mr. Randolph for the original section is to be adopted it would be proper to allow the Senate at least so to amend as to diminish the sums to be raised. Why should they be restrained from checking the extravagance of the other House? — One of the greatest evils incident to Republican Govt. was the spirit of contention & faction. The proposed substitute, which in some respects lessened the objections agst. the section, had a contrary effect with respect to this particular. It laid a foundation for new difficulties and disputes between the two houses. The word revenue was ambiguous. In many acts, particularly in the regulations of trade, the object would be twofold. The raising of revenue would be one of them. How could it be determined which was the primary or predominant one; or whether it was necessary that revenue shd: be the sole object, in exclusion even of other incidental effects. When the Contest was first opened with G. B. their power to regulate trade was admitted. Their power to raise revenue rejected. An accurate investigation of the subject afterward proved that no line could be drawn between the two cases. The words amend or alter, form an equal source of doubt & altercation. When an obnoxious paragraph shall be sent down from the Senate to the House of Reps it will be called an origination under the name of an amendment. The Senate may actually couch extraneous matter under that name. In these cases, the question will turn on the degree of connection between the matter & object of the bill and the 〈alteration or〉 amendment offered to it. Can there be a more fruitful source of dispute, or a kind of dispute more difficult to be settled? His apprehensions on this point were not conjectural. Disputes had actually flowed from this source in Virga. where Edition: current; Page: [277] the Senate can originate no bill. The words “so as to increase or diminish the sum to be raised,” were liable to the same objections. In levying indirect taxes, which it seemed to be understood were to form the principal revenue of the new Govt. the sum to be raised, would be increased or diminished by a variety of collateral circumstances influencing the consumption, in general, the consumption of foreign or of domestic articles — of this or that particular species of articles, and even by the mode of collection which may be closely connected with the productiveness of a tax. — The friends of the section had argued its necessity from the permanency of the Senate. He could not see how this argumt. applied. The Senate was not more permanent now than in the form it bore in the original propositions of Mr. Randolph and at the time when no objection whatever was hinted agst. its originating money bills. Or if in consequence of a loss of the present question, a proportional vote in the Senate should be reinstated as has been urged as the indemnification the permanency of the Senate will remain the same. — If the right to originate be vested exclusively in the House of Reps. either the Senate must yield agst. its judgment to that House, in which 〈case〉 the Utility of the check will be lost — or the Senate will be inflexible & the H. of Reps must adapt its Money bill to the views of the Senate, in which case, the exclusive right will be of no avail. — As to the Compromise of which so much had been said, he would make a single observation. There were 5 States which had opposed the equality of votes in the Senate. viz. Masts. Penna. Virga. N. Carolina & S. Carola. As a compensation for the sacrifice extorted 〈from them〉 on this head, the exclusive origination of money bills in the other House had been tendered. Of the five States a majority viz. Penna. Virga. & S. Carola. have uniformly voted agst. the proposed compensation, on its own merits, as rendering the plan of Govt. still more objectionable- Massts has been divided. N. Carolina alone has set a value on the compensation, and voted on that principle. What obligation then can the small States be under to concur agst. their judgments in reinstating the section?

Edition: current; Page: [278]

Mr. Dickenson. Experience must be our only guide. Reason may mislead us. It was not Reason that discovered the singular & admirable mechanism of the English Constitution. It was not Reason that discovered or ever could have discovered the odd & in the eye of those who are governed by reason, the absurd mode of trial by Jury. Accidents probably produced these discoveries, and experience has give a sanction to them. This is then our guide. And has not experience verified the utility of restraining money bills to the immediate representatives of the people. Whence the effect may have proceeded he could not say; whether from the respect with which this privilege inspired the other branches of Govt. to the H. of Commons, or from the turn of thinking it gave to the people at large with regard to their rights, but the effect was visible & could not be doubted Shall we oppose to this long experience, the short experience of 11 years which we had ourselves, on this subject — As to disputes, they could not be avoided any way. If both Houses should originate, each would have a different bill to which it would be attached, and for which it would contend. — He observed that all the prejudices of the people would be offended by refusing this exclusive privilege to the H. of Repress. and these prejudices shd. never be disregarded by us when no essential purpose was to be served. When this plan goes forth, it will be attacked by the popular leaders. Aristocracy will be the watchword; the Shibboleth among its adversaries. Eight States have inserted in their Constitutions the exclusive right of originating money bills in favor of the popular branch of the Legislature. Most of them however allowed the other branch to amend. This he thought would be proper for us to do.

Mr Randolph regarded this point as of such consequence, that as he valued the peace of this Country, he would press the adoption of it. We had numerous & monstrous difficulties to combat. Surely we ought not to increase them. When the people behold in the Senate, the countenance of an aristocracy; and in the president, the form at least of a little monarch, will not their alarms be sufficiently raised without Edition: current; Page: [279] taking from their immediate representatives, a right which has been so long appropriated to them. — The Executive will have more influence over the Senate, than over the H. of Reps — Allow the Senate to originate in this case, & that influence will be sure to mix itself in their deliberations & plans. The Declaration of War he conceived ought not to be in the Senate composed of 26 men only, but rather in the other House. In the other House ought to be placed the origination of the means of war. As to Commercial regulations which may involve revenue, the difficulty may be avoided by restraining the definition to bills for the mere or sole, purpose of raising revenue. The Senate will be more likely to be corrupt than the H. of Reps and should therefore have less to do with money matters. His principal object however was to prevent popular objections against the plan, and to secure its adoption.

Mr. Rutlidge. The friends of this motion are not consistent in their reasoning. They tell us, that 〈we ought to be guided by〉 the long experience of G. B. & not our own experience of 11 years: and yet they themselves propose to depart from it. The H. of Commons not only have the exclusive right of originating, but the Lords are not allowed to alter or amend a money bill. Will not the people say that this restriction is but a mere tub to the whale. They cannot but see that it is of no real consequence; and will be more likely to be displeased with it as an attempt to bubble them, than to impute it to a watchfulness over their rights. For his part, he would prefer giving the exclusive right to the Senate, if it was to be given 〈exclusively〉 at all. The Senate being more conversant in business, and having more leisure, will digest the bills much better, and as they are to have no effect, till examined & approved by the H. of Reps there can be no possible danger. These clauses in the Constitutions of the States had been put in through a blind adherence to the British model. If the work was to be done over now, they would be omitted. The experiment in S. Carolina- where the Senate cannot originate or amend money bills, has shown that it answers no good purpose; and produces the very bad one of Edition: current; Page: [280] continually dividing & heating the two houses. Sometimes indeed if the matter of the amendment of the Senate is pleasing to the other House they wink at the encroachment; if it be displeasing, then the Constitution is appealed to. Every Session is distracted by altercations on this subject. The practice now becoming frequent is for the Senate not to make formal amendments; but to send down a schedule of the alterations which will procure the bill their assent.

Mr. Carrol. The most ingenious men in Maryd. are puzzled to define the case of money bills, or explain the Constitution on that point; tho’ it seemed to be worded with all possible plainness & precision. It is a source of continual difficulty & squabble between the two houses.

Mr. McHenry mentioned an instance of extraordinary subterfuge, to get rid of the apparent force of the Constitution

On Question on the first part of the motion as to the exclusive originating of Money bills in the H. of Reps.

〈Question on the last clause of sect: 5 — Art: IV — viz “No money shall be drawn from the Public Treasury, but in pursuance of appropriations that shall originate in the House of Reps. It passed in the negative

McHENRYAugust 13.

The 2 sect. of the 4 article and the 3 sect. of the 5 article was reconsidered and lengthily debated. The 7 years however in the first and the 9 years in the latter remained and the articles stood as before reconsideration.

Edition: current; Page: [282]

TUESDAY, AUGUST 14, 1787.

JOURNAL Tuesday August 14. 1787.

It was moved and seconded to postpone the consideration of the 9. section of the 6 article in order to take up the following

“The members of each House shall be incapable of holding any Office under the United States for which they, or any other for their benefit, receive any salary, fees, or emoluments of any kind — and the acceptance of such office shall vacate their seats respectively”

which passed in the negative. [Ayes — 5; noes — 5; divided — 1.]

It was moved and seconded to amend the 9 section of the 6 article by adding the following clause after the words “be elected”

“except in the army or navy thereof, but in that case their seats shall be vacated”

Before the question was taken on the last amendment

It was moved and seconded to postpone the consideration of the 9th section of the 6 article until the powers to be vested in the Senate are ascertained

which passed unanimously in the affirmative

It was moved and seconded to strike out the latter clause of the 10 sect. of the 6 article and to insert the following

“to be paid out of the Treasury of the United States”

which passed in the affirmative [Ayes — 9; noes — 2.]

It was moved and seconded to agree to the following amendment to the 10 sect. of the 6 article

“five dollars or the present value thereof per diem during their attendance & for every thirty miles travel in going to and returning from Congress”

which passed in the negative [Ayes — 2; noes — 9.]

Edition: current; Page: [283]

It was moved and seconded to agree to the following amendment to the 10th sect. of the 6 article

“to be ascertained by law”

which passed in the affirmative

On the question to agree to the 10 section of the 6 article as amended it passed in the affirmative —

and then the House adjourned till to-morrow at 11 o’Clock A M

DETAIL OF AYES AND NOES

New Hampshire

Massachusetts

Rhode Island

Connecticut

New York

New Jersey

Pennsylvania

Delaware

Maryland

Virginia

North Carolina

South Carolina

Georgia

Questions

Ayes

Noes

Divided

[291]

aye

no

no

no

aye

aye

aye

aye

no

no

dd

To postpone the considn of the 9 sect. of the 6 article

5

5

1

[292]

aye

no

aye

aye

aye

aye

aye

aye

aye

no

aye

To be paid out of the Treasury of the United States.

9

2

[293]

no

no

aye

no

no

no

no

aye

no

no

no

To agree to five dollars per diem

2

9

MADISON Tuesday Aug. 14. In Convention

Mr. Pinkney argued that the making the members ineligible to offices was degrading to them, and the more improper as their election into the Legislature implied that they had the confidence of the people; that it was inconvenient, because the Senate might be supposed to contain the fittest men. He hoped to see that body become a School of Public Ministers, a nursery of Statesmen: that it was impolitic, because the Legislature would cease to be a magnet to the first talents Edition: current; Page: [284] and abilities. He moved 〈to postpone the section in order to take up the following proposition viz — “the members of each House shall be incapable of holding any office under the U. S. for which they or any of others for their benefit receive any salary, fees, or emoluments of any kind — and the acceptance of such office shall vacate their seats respectively”〉2

Genl. Mifflin 2ded. the motion

Col. Mason ironically proposed to strike out the whole section, as a more effectual expedient for encouraging that exotic corruption which might not otherwise thrive so well in the American Soil — for compleating that Aristocracy which was probably in the contemplation of some among us. and for inviting into the Legislative service, those generous & benevolent characters who will do justice to each other’s merit, by carving out offices & rewards for it. In the present state of American morals & manners, few friends it may be thought will be lost to the plan, by 〈the opportunity〉 of giving premiums to a mercenary & depraved ambition.

Mr Mercer. It is a first principle in political science, that whenever the rights of property are secured, an aristocracy will grow out of it. Elective Governments also necessarily become aristocratic, because the rulers being few can & will draw emoluments for themselves from the many. The Governments of America will become aristocracies. They are so already. The public measures are calculated for the benefit of the Governors, not of the people. The people are dissatisfied & complain. They change their rulers, and the public measures are changed, but it is only a change of one scheme of emolument to the rulers, for another. The people gain nothing by it, but an addition of instability & uncertainty to their other evils. — Governmts. can only be maintained by force or influence. The Executive has not force, deprive him of influence by rendering the members of the 〈Legislature〉 ineligible to Executive offices, and he becomes a mere phantom of authority. The Aristocratic part will not even let him in for a share of the plunder. The Legislature must & will Edition: current; Page: [285] be composed of wealth & abilities, and the people will be governed by a Junto. The Executive ought to have a Council, being members of both Houses. Without such an influence, the war will be between the aristocracy & the people. He wished it to be between the Aristocracy & the Executive. Nothing else can protect the people agst. those speculating Legislatures which are now plundering them throughout the U. States.

Mr. Gerry read a Resolution of the Legislature of Massts. passed before the Act of Congs. recommending the Convention, in which her deputies were instructed not to depart from the rotation established in the 5th. art: of Confederation, nor to agree in any case to give to the members of Congs. a capacity to hold offices under the Government. This he said was repealed in consequence of the Act of Congs. with which the State thought it proper to comply in an unqualified manner. The Sense of the State however was still the same. He could not think with Mr. Pinkney that the disqualification was degrading. Confidence is the road to tyranny. As to Ministers & Ambassadors few of them were necessary. It is the opinion of a great many that they ought to be discontinued, on our part; that none may be sent among us, & that source of influence be shut up. If the Senate were to appoint Ambassadors as seemed to be intended, they will multiply embassies for their own sakes. He was not so fond of those productions as to wish to establish nurseries for them. If they are once appointed, the House of Reps. will be obliged to provide salaries for them, whether they approve of the measures or not. If men will not serve in the Legislature without a prospect of such offices, our situation is deplorable indeed. If our best Citizens are actuated by such mercenary views, we had better chuse a single despot at once. It will be more easy to satisfy the rapacity of one than of many. According to the idea of one Gentleman (Mr. Mercer) our Government it seems is to be a Govt. of plunder. In that case it certainly would be prudent to have but one rather than many to be employed in it. We cannot be too circumspect in the formation of this System. It will be examined on all sides Edition: current; Page: [286] and with a very suspicious eye. The People who have been so lately in arms agst. G. B. for their liberties, will not easily give them up. He lamented the evils existing at present under our Governments, but imputed them to the faults of those in office, not to the people. The misdeeds of the former will produce a critical attention to the opportunities afforded by the new system to like or greater abuses. As it now stands it is as compleat an aristocracy as ever was framed If great powers should be given to the Senate we shall be governed in reality by a Junto as has been apprehended. He remarked that it would be very differently constituted from Congs 1. there will be but 2 deputies from each State, in Congs. there may be 7. and are generally 5. — 2. they are chosen for six years. those of Congs. annually. 3. they are not subject to recall; those of Congs. are. 4. In Congs. 9 states are necessary for all great purposes — here 8 persons will suffice. Is it to be presumed that the people will ever agree to such a system? He moved to render the members of the H. of Reps. as well as of the Senate ineligible not only during, but for one year after the expiration of their terms. — If it should be thought that this will injure the Legislature by keeping out of it men of abilities who are willing to serve in other offices it may be required as a qualification for other offices, that the Candidate shall have served a certain time in the Legislature.

Mr Govr. Morris. Exclude the officers of the army & navy, and you form a band having a different interest from & opposed to the civil power: you stimulate them to despise & reproach those “talking Lords who dare not face the foe”. Let this spirit be roused at the end of a war, before your troops shall have laid down their arms, and though the Civil authority be “entrenched in parchment to the teeth” they will cut their way to it. He was agst. rendering the members of the Legislature ineligible to offices. He was for rendering them eligible agn. after having vacated their Seats by accepting office. Why should we not avail ourselves of their services if the people chuse to give them their confidence. There can be little danger of corruption either among the people or the Legislatures who are to be the Electors. If they say, we see Edition: current; Page: [287] their merits, we honor the men, we chuse to renew our confidence in them, have they not a right to give them a preference; and can they be properly abridged of it.

Mr. Williamson; introduced his opposition to the motion by referring to the question concerning “money bills”. That clause he said was dead. Its ghost he was afraid would notwithstanding haunt us. It 〈had been〉 a matter of conscience with him, to insist upon it as long as there was hope of retaining it. He had swallowed the vote of rejection, with reluctance. He could not digest it. All that was said on the other side was that the restriction was not convenient. We have now got a House of Lords which is to originate money-bills. To avoid another inconveniency, we are to have a whole Legislature at liberty to cut out offices for one another. He thought a self-denying ordinance for ourselves would be more proper. Bad as the Constitution has been made by expunging the restriction on the Senate concerning money bills he did not wish to make it worse by expunging the present Section. He had scarcely seen a single corrupt measure in the Legislature of N- Carolina, which could not be traced up to office hunting.

Mr Sherman. The Constitution shd. lay as few temptations as possible in the way of those in power. Men of abilities will increase as the Country grows more populous and, and the means of education are more diffused.

Mr. Pinkney- No State has rendered the members of the Legislature ineligible to offices. In S- Carolina the Judges are eligible into the Legislature. It cannot be supposed then that the motion will be offensive to the people. If the State Constitutions should be revised he believed restrictions of this sort wd be rather diminished than multiplied.

Mr. Wilson could not approve of the Section as it stood, and could not give up his judgment to any supposed objections that might arise among the people. He considered himself as acting & responsible for the welfare of millions not immediately represented in this House. He had also asked himself the serious question what he should say to his constituents in case they should call upon him to tell them why he sacrificed his own Judgment in a case where they authorized Edition: current; Page: [288] him to exercise it? Were he to own to them that he sacrificed it in order to flatter their prejudices, he should dread the retort: did you suppose the people of Penna. had not good sense enough to receive a good Government? Under this impression he should certainly follow his own Judgment which disapproved of the section. He would remark in addition to the objections urged agst. it. that as one branch of the Legislature was to be appointed by the Legislatures of the States, the other by the people of the States, as both are to be paid by the States, and to be appointable to State offices; nothing seemed to be wanting to prostrate the Natl. Legislature, but to render its members ineligible to Natl offices, & by that means take away its power of attracting those talents which were necessary to give weight to the Governt. and to render it useful to the people. He was far from thinking the ambition which aspired to Offices of dignity and trust, an ignoble or culpable one. He was sure it was not politic to regard it in that light, or to withhold from it the prospect of those rewards, which might engage it in the career of public service. He observed that the State of Penna. which had gone as far as any State into the policy of fettering power, had not rendered the members of the Legislature ineligible to offices of Govt.

Mr Elsworth did not think the mere postponement of the reward would be any material discouragement of merit. Ambitious minds will serve 2 years or 7 years in the Legislature for the sake of qualifying themselves for other offices. This he thought a sufficient security for obtaining the services of the ablest men in the Legislature, although whilst members they should be ineligible to Public offices. Besides, merit will be most encouraged, when most impartially rewarded. If rewards are to circulate only within the Legislature, merit out of it will be discouraged.

Mr. Mercer was extremely anxious on this point. What led to the appointment of this Convention? The corruption & mutability of the Legislative Councils of the States. If the plan does not remedy these, it will not recommend itself: and we shall not be able in our private capacities to support Edition: current; Page: [289] & enforce it: nor will the best part of our Citizens exert themselves for the purpose. — It is a great mistake to suppose that the paper we are to propose will govern the U. States? It is The men whom it will bring into the Governt. and interest in maintaining it that is to govern them. The paper will only mark out the mode & the form- Men are the substance and must do the business. All Govt. must be by force or influence. It is not the King of France — but 200,000 janisaries of power that govern that Kingdom. There will be no such force here; influence then must be substituted; and he would ask whether this could be done, if the members of the Legislature should be ineligible to offices of State; whether such a disqualification would not determine all the most influential men to stay at home, and & prefer appointments within their respective States.

Mr. Wilson was by no means satisfied with the answer given by Mr. Elseworth to the argument as to the discouragement of merit. The members must either go a second time into the Legislature, and disqualify themselves — or say to their Constituents, we served you before only from the mercenary view of qualifying ourselves for offices, and haveg answered this purpose we do not chuse to be again elected.

Mr. Govr. Morris put the case of a war, and the Citizen the most capable of conducting it, happening to be a member of the Legislature. What might have been the consequence of such a regulation at the commencement, or even in the Course of the late contest for our liberties?

On question for postponing in order to take up Mr. Pinkneys motion, 〈it was lost.〉

Mr Govr Morris moved to insert, after “office”, except offices in the army or navy: 〈but in that case their offices shall be vacated〉4

Edition: current; Page: [290]

Mr. Broome 2ds. him

M. Randolph had been & should continue uniformly opposed to the striking out of the clause; as opening a door for influence & corruption. No arguments had made any impression on him, but those which related to the case of war, and a co-existing incapacity of the fittest commanders to be employed. He admitted great weight in these, and would agree to the exception proposed by Mr. Govr. Morris.

Mr. Butler & Mr Pinkney urged a general postponemt. 〈of 9 Sect. art. VI〉5 till it should be seen what powers would be vested in the Senate, when it would be more easy to judge of the expediency of allowing the Officers of State to be chosen out of that body. — A general postponement was agreed to nem. con.6

Art: VI. sect. 10. taken up — “that members be paid by their respective States.”7

Mr. Elseworth said that in reflecting on this subject he had been satisfied that too much dependence on the States would be produced by this mode of payment. He moved 〈to strike out and insert〉 “that they should” be paid out of the Treasury 〈of the U. S.〉 an allowance not exceeding 〈(blank)〉8 dollars per day or the present value thereof,

Mr. Govr Morris. remarked that if the members were to be paid by the States it would throw an unequal burden on the distant States, which would be unjust as the Legislature was to be a national Assembly. He moved that the payment be out of the Natl. Treasury; leaving the quantum to the discretion of the Natl. Legislature. There could be no reason to fear that they would overpay themselves.

Mr. Butler contended for payment by the States; particularly in the case of the Senate, who will be so long out of their respective States, that they will lose sight of their Constituents unless dependent on them for their support.

Mr Langdon was agst. payment by the States. There would Edition: current; Page: [291] be some difficulty in fixing the sum; but it would be unjust to oblige the distant States to bear the expence of their members in travelling to and from the Seat of Govt.

Mr 〈Madison.〉 If the H. of Reps. is to be chosen biennially — and the Senate to be constantly dependent on the Legislatures which are chosen annually, he could not see any chance for that stability in the Genl Govt. the want of which was a principal evil in the State Govts. His fear was that the organization of the Govt supposing the Senate to be really independt. for six years, would not effect our purpose. It was nothing more than a combination of the peculiarities of two of the State Govts. which separately had been found insufficient. The Senate was formed on the model of that of Maryld. The Revisionary check, on that of N. York. What the effect of A union of these provisions might be, could not be foreseen. The enlargement of the sphere of the Government was indeed a circumstance which he thought would be favorable as he had on several occasions undertaken to show. He was however for fixing at least two extremes not to be exceeded by the Natl. Legislre. in the payment of themselves.

Mr. Gerry. There are difficulties on both sides. The observation of Mr. Butler has weight in it. On the other side, the State Legislatures may turn out the Senators by reducing their salaries. Such things have been practised.

Col. Mason. It has not yet been noticed that the clause as it now stands makes the House of Represents. also dependent on the State Legislatures; so that both Houses will be made the instruments of the politics of the States whatever they may be.

Mr. Broom could see no danger in trusting the Genl. Legislature with the payment of themselves. The State Legislatures had this power, and no complaint had been made of it-

Mr. Sherman was not afraid that the Legislature would make their own wages too high; but too low, so that men ever so fit could not serve unless they were at the same time rich. He thought the best plan would be to fix a moderate allowance to be paid out of the Natl. Treasy. and let the States make such additions as they might judge fit. He moved that Edition: current; Page: [292] 5 dollars per day be the sum, any further emoluments to be added by the States.

Mr. Carrol had been much surprised at seeing this clause in the Report. The dependence of both houses on the State Legislatures is compleat; especially as the members of the former are eligible to State offices. The States can now say: if you do not comply with our wishes, we will starve you: if you do we will reward you. The new Govt. in this form was nothing more than a second edition of Congress in two volumes, instead of one, and perhaps with very few amendments —

Mr Dickenson took it for granted that all were convinced of the necessity of making the Genl. Govt. independent of the prejudices, passions, and improper views of the State Legislatures. The contrary of This was effected by the section as it stands. On the other hand, there were objections agst taking a permanent standard as Wheat which had been suggested on a former occasion, as well as against leaving the matter to the pleasure of the Natl. Legislature. He proposed that an Act should be passed every 12 years by the Natl. Legislre settling the quantum of their wages. If the Genl. Govt. should be left dependent on the State Legislatures, it would be happy for us if we had never met in this Room.

Mr. Elseworth was not unwilling himself to trust the Legislature with authority to regulate their own wages, but well knew that an unlimited discretion for that purpose would produce strong, tho’ perhaps not insuperable objections. He thought changes in the value of money, provided for by his motion in the words, “or the present value thereof.”

Mr. L. Martin. As the Senate is to represent the States, the members of it ought to be paid by the States —

Mr. Carrol. The Senate was to represent & manage the affairs of the whole, and not to be the advocates of State interests. They ought then not to be dependent on nor paid by the States.

On the question for paying the Members of the Legislature out of the Natl Treasury, ÷

Mr. Dickenson proposed that the wages of the members of both houses sd. be required to be the same.

Mr. Broome seconded him.

Mr Ghorum. this would be unreasonable. The Senate will be detained longer from home, will be obliged to remove their families, and in time of war perhaps to sit constantly. Their allowance should certainly be higher. The members of the Senates in the States are allowed more, than those of the other house.

Mr Dickenson withdrew his motion

〈It was moved & agreed to amend the Section by adding- “to be ascertained by law”〉9

The Section (Art VI. sec. 10) as amended- agreed to nem. con.

Adjd.

McHENRYAugt. 14.

Sect. 8 agreed to, premising the words “during the session of the legislature”.10

Sect. 9. postponed.

Sect. 10. altered, that the members of both branches be paid out of the treasury of the United States, their pay to be ascertained by law.

Edition: current; Page: [294]

WEDNESDAY, AUGUST 15, 1787.

JOURNAL Wednesday August 15. 1787.

On the question to agree to the 11 Sect. of the 6 article as reported1

it passed in the affirmative

It was moved and seconded to strike out the latter part of the 12 Sect. of the 6 article,

It was moved and seconded to amend- the 12. sect. of the 6 article as follows

“Each House shall possess the right of originating all Bills except Bills for raising money for the purposes of revenue or for appropriating the same and for fixing the salaries of the Officers of Government which shall originate in the House of representatives; but the Senate may propose or concur with amendments as in other cases”

It was moved and seconded to postpone the consideration of the last amendment

which passed in the affirmative. [Ayes — 6; noes — 5.]

It was moved and seconded to agree to the following amendmt of the 13th sect. of the 6 article.

“Every bill which shall have passed the two Houses, shall, before it become a law, be severally presented to the President of the United States and to the Judges of the supreme court, for the revision of each — If, upon such revision, they shall approve of it, they shall respectively signify their approbation by signing it — But, if upon such revision, it shall appear improper to either or both to be Edition: current; Page: [295] passed into a law; it shall be returned, with the objections against it, to that House in which it shall have originated, who shall enter the objections at large on their Journal, and proceed to reconsider the bill: But, if, after such reconsideration, two thirds of that House, when either the President or a Majority of the Judges shall object, or three fourths, where both shall object, shall agree to pass it, it shall, together with the objections, be sent to the other House, by which it shall likewise be reconsidered and, if approved by two thirds, or three fourths of the other House, as the case may be, it shall become a law”

MADISON Wednesday August 15. in Convention

Mr. Strong move〈d〉7 to amend 〈the article so as to read — “Each House shall possess the right of originating all bills, except bills for raising money for the purposes of revenue, or for appropriating the same and for fixing the salaries of the officers of the Govt. which shall originate in the House of Representatives; but the Senate may propose or concur with amendments as in other cases”〉8

Col. Mason. 2ds. the motion. He was extremely earnest to take this power from the Senate, who he said could already sell the whole Country by means of Treaties.

Mr Ghorum urged the amendment as of great importance. The Senate will first acquire the habit of preparing money bills, and then the practice will grow into an exclusive right of preparing them.

Mr. Gouvernr. Morris opposed it as unnecessary and inconvenient.

Mr. Williamson- some think this restriction on the Senate essential to liberty — others think it of no importance. Why should not the former be indulged. he was for an efficient and stable Govt: but many would not strengthen the Senate if not restricted in the case of money bills. The friends of the Senate would therefore lose more than they would gain by refusing to gratify the other side. He moved to postpone the subject till the powers of the Senate should be gone over.

Mr. Rutlidge 2ds. the motion.

Mr. Mercer should hereafter be agst. returning to a reconsideration of this section. He contended, (alluding to Mr. Mason’s observations) that the Senate ought not to have the power of treaties. This power belonged to the Executive department; adding that Treaties would not be final so as to alter the laws of the land, till ratified by legislative authority. This was the case of Treaties in Great Britain; particularly the late Treaty of Commerce with France.

Col. Mason. did not say that a Treaty would repeal a law; but that the Senate by means of treaty might alienate territory &c. without legislative sanction. The cessions of the British Edition: current; Page: [298] Islands in W- Indies by Treaty alone were an example - If Spain should possess herself of Georgia therefore the Senate might by treaty dismember the Union. He wished the motion to be decided now, that the friends of it might know how to conduct themselves.

Mr. Ma〈dison〉 moved that all acts before they become laws should be submitted both to the Executive and Supreme Judiciary Departments, that if either of these should object ⅔ of each House, if both should object, ¾ of each House, should be necessary to overrule the objections and give to the acts the force of law. — 〈See the motion at large in the Journal of this date, page 258 [253]. & insert it here.〉

Mr. Wilson seconds the motion

Mr. Pinkney opposed the interference of the Judges in the Legislative business: it will involve them in parties, and give a previous tincture to their opinions.

Mr. Mercer heartily approved the motion. It as an axiom that the Judiciary ought to be separate from the Legislative: but equally so that it ought to be independent of that department. The true policy of the axiom is that legislative usurpation and oppression may be obviated. He disapproved of the Doctrine that the Judges as expositors of the Constitution should have authority to declare a law void. He thought laws ought to be well and cautiously made, and then to be uncontroulable.

Mr. Gerry. This motion comes to the same thing with what has been already negatived.

Mr. Govr. Morris regretted that something like the proposed check could not be agreed to. He dwelt on the importance of public Credit, and the difficulty of supporting it without some strong barrier against the instability of legislative Assemblies. He suggested the idea of requiring three fourths of each house to repeal laws where the President should not concur. He had no great reliance on the revisionary power as the Executive was now to be constituted (elected by the Congress). The legislature will contrive to soften down the President. He recited the history of paper emissions, and the perseverance of the legislative assemblies in repeating them, with all the distressing effects 〈of such measures〉 before their eyes. Were the National legislature formed, and a war was now to break out, this ruinous expedient would be again resorted to, if not guarded against. The requiring ¾ to repeal would, though not a compleat remedy, prevent the hasty passage of laws, and the frequency of those repeals which destroy faith in the public, and which are among our greatest calamities. —

Mr Dickenson was strongly impressed with the remark of Mr. Mercer as to the power of the Judges to set aside the law. He thought no such power ought to exist. He was at the same time at a loss what expedient to substitute. The Justiciary of Aragon he observed became by degrees the lawgiver.

Mr. Govr. Morris, suggested the expedient of an absolute negative in the Executive. He could not agree that the Judiciary which was part of the Executive, should be bound to say that a direct violation of the Constitution was law. A controul over the legislature might have its inconveniences. But view the danger on the other side. The most virtuous citizens will often as members of a legislative body concur in measures which afterwards in their private capacity they will be ashamed of. Encroachments of the popular branch of the Government ought to be guarded agst. The Ephori at Sparta became in the end absolute. The Report of the Council of Censors in Pennsylva points out the many invasions of the legislative department on the Executive numerous as the Edition: current; Page: [300] latter* is, within the short term of seven years, and in a State where a strong party is opposed to the Constitution, and watching every occasion of turning the public resentments agst. it. If the Executive be overturned by the popular branch, as happened in England, the tyranny of one man will ensue - In Rome where the Aristocracy overturned the throne, the consequence was different. He enlarged on the tendency of the legislative Authority to usurp on the Executive and wished the section to be postponed, in order to consider of some more effectual check than requiring ⅔ only to overrule the negative of the Executive.

Mr Sherman. Can one man be trusted better than all the others if they all agree? This was neither wise nor safe. He disapproved of Judges meddling in politics and parties. We have gone far enough in forming the negative as it now stands.

Mr. Carrol- when the negative to be overruled by ⅔ only was agreed to, the quorum was not fixed. He remarked that as a majority was now to be the quorum, 17, in the larger, and 8 in the smaller house might carry points. The Advantage that might be taken of this seemed to call for greater impediments to improper laws. He thought the controuling power however of the Executive could not be well decided, till it was seen how the formation of that department would be finally regulated. He wished the consideration of the matter to be postponed.

Mr. Ghorum saw no end to these difficulties and postponements. Some could not agree to the form of Government before the powers were defined. Others could not agree to the powers till it was seen how the Government was to be formed. He thought a majority as large a quorum as was necessary. It was the quorum almost every where fixt in the U. States.

Mr. Wilson; after viewing the subject with all the coolness and attention possible was most apprehensive of a dissolution of the Govt from the legislature swallowing up all the other powers. He remarked that the prejudices agst the Executive Edition: current; Page: [301] resulted from a misapplication of the adage that the parliament was the palladium of liberty. Where the Executive was really formidable, King and Tyrant, were naturally associated in the minds of people; not legislature and tyranny. But where the Executive was not formidable, the two last were most properly associated. After the destruction of the King in Great Britain, a more pure and unmixed tyranny sprang up in the parliament than had been exercised by the monarch. He insisted that we had not guarded agst. the danger on this side by a sufficient self-defensive power either to the Executive or Judiciary department-

Mr Rutlidge was strenuous agst postponing; and complained much of the tediousness of the proceedings.

Mr Elseworth held the same language. We grow more & more skeptical as we proceed. If we do not decide soon, we shall be unable to come to any decision.

The question for postponement passed in the negative: 〈Del: & Maryd only being in the affirmative.〉10

Mr. Williamson moved to change “⅔ of each house” into “¾” as requisite to overrule the dissent of the President. He saw no danger in this, and preferred giving the power to the Presidt. alone, to admitting the Judges into the business of legislation.

Mr. Wilson 2ds. the motion; referring to and repeating the ideas of Mr. Carroll.

On this motion for ¾. 〈instead of two thirds; it passed in the affirmative〉11

Mr. 〈Madison,〉 observing that if the negative of the President was confined to bills; it would be evaded by acts under the form and name of Resolutions, votes &c — proposed that or resolve should be added after “bill” in the beginning of sect 13. with an exception as to votes of adjournment &c. Edition: current; Page: [302] — after a short and rather confused conversation on the subject, the question was put & rejected, the States being as follows,

“Ten days (Sundays excepted)” instead of “seven” were allowed to the President for returning bills with his objections 〈N. H. & Mas: only voting agst. it. The 13 sect: of art. VI as amended was then agreed to.〉13

McHENRYAugust 15.

Sect. 13. Agreed to with the alteration of ¾ of each house instead of two thirds.

Edition: current; Page: [303]

THURSDAY, AUGUST 16, 1787.

JOURNAL Thursday August 16. 1787.

It was moved and seconded to agree to the following as the 14 section of the 6. article.

“every order, resolution or vote, to which the concurrence of the Senate and House of representatives may be necessary (except on a question of adjournment, and in the cases hereinafter mentioned) shall be presented to the President for his revision; and before the same shall have force, shall be approved by him, or, being disapproved by him, shall be repassed by the Senate and House of representatives, according to the rules and limitations prescribed in the case “of a bill”

separate questions being taken on the 1, 2, 3, 4, 5, 6, 7 and 8 clauses of the 1. sect. of the 7 article as amended

They passed in the affirmative.

And then the House adjourned till to-morrow at 11 o’Clock A. M.

DETAIL OF AYES AND NOES

3At this point the secretary began keeping the Detail of Ayes and Noes in a bound blank book. On page 1 he apparently started to copy some of the more important votes from the loose sheets. He had thus copied Votes 17, 29, 30, 32, 34-37, 39-41, when he stopped and, leaving ten blank pages, commenced recording the votes of August 16 on page 12. After filling up pages 12-16, he turned back to page 2 and recorded the last votes on that and the page following.

MADISON Thursday. August 16. in Convention.

Mr. Randolph, having thrown into a new form the motion, putting votes, Resolutions &c. on a footing with Bills, renewed it 〈as follows. “Every order resolution or vote, to which the concurrence of the Senate & House of Reps. may be necessary (except on a question of adjournment and in the cases hereinafter Edition: current; Page: [305] mentioned) shall be presented to the President for his revision; and before the same shall have force shall be approved by him, or being disapproved by him shall be repassed by the Senate & House of Reps according to the rules & limitations prescribed in the case of a Bill”〉4

Mr. Sherman thought it unnecessary, except as to votes taking money out of the Treasury which might be provided for in another place.

Mr. L. Martin asked what was meant by the Committee of detail 〈in the expression〉 “duties” and “imposts”.6 If the meaning were the same, the former was unnecessary; if different, the matter ought to be made clear.

Mr Wilson, duties are applicable to many objects to which the word imposts does not relate. The latter are appropriated to commerce; the former extend to a variety of objects, as stamp duties &c.

Mr. Carroll reminded the Convention of the great difference of interests among the States, and doubts the propriety in that point of view of letting a majority be a quorum.

Mr. Mason urged the necessity of connecting with the power of levying taxes duties &c, 〈the prohibition in Sect 4 of art VI7〉 that no tax should be laid on exports. He was unwilling to trust to its being done in a future article. He hoped the Northn. States did not mean to deny the Southern this security. It would hereafter be as desirable to the former when the latter should become the most populous. He professed Edition: current; Page: [306] his jealousy for the productions of the Southern or as he called them, the staple States. 〈He moved to insert the following amendment: “provided that no tax duty or imposition, shall be laid by the Legislature of the U. States on articles exported from any State”〉8

Mr Sherman had no objection to the proviso here, other than it would derange the parts of the report as made by the Committee, to take them in such an order.

Mr. Rutlidge. It being of no consequence in what order points are decided, he should vote for the clause as it stood, but on condition that the subsequent part relating to negroes should also be agreed to.

Mr. Governeur Morris considered such a proviso as inadmissible any where. It was so radically objectionable, that it might cost the whole system the support of some members. He contended that it would not in some cases be equitable to tax imports without taxing exports; and that taxes on exports would be often the most easy and proper of the two.

Mr. 〈Madison〉 1. the power of taxing exports is proper in itself, and as the States cannot with propriety exercise it separately, it ought to be vested in them collectively. 2. it might with particular advantage be exercised with regard to articles in which America was not rivalled in foreign markets, as Tobo. &c. The contract between the French Farmers Genl. and Mr. Morris stipulating that if taxes sd. be laid in America on the export of Tobo. they sd. be paid by the Farmers, shewed that it was understood by them, that the price would be thereby raised in America, and consequently the taxes be paid by the European Consumer. 3. it would be unjust to the States whose produce was exported by their neighbours, to leave it subject to be taxed by the latter. This was a grievance which had already filled N. H. Cont. N. Jery. Del: and N. Carolina with loud complaints, as it related to imports, and they would be equally authorized by taxes 〈by the States〉 on exports. 4. The Southn. States being most in danger and most needing naval protection, could the less complain if the Edition: current; Page: [307] burden should be somewhat heaviest on them. 5. we are 〈not〉 providing for the present moment only, and time will equalize the situation of the States in this matter. 〈He was for these reasons, agst the motion〉

Mr. Williamson considered the clause proposed agst taxes on exports as reasonable and necessary.

Mr. Elseworth was agst. Taxing exports; but thought the prohibition stood in the most proper place, and was agst. deranging the order reported by the Committee

Mr. Wilson was decidedly agst prohibiting general taxes on exports. He dwelt on the injustice and impolicy of leaving N. Jersey Connecticut &c any longer subject to the exactions of their commercial neighbours.

Mr Gerry thought the legislature could not be trusted with such a power. It might ruin the Country. It might be exercised partially, raising one and depressing another part of it.

Mr Govr Morris. However the legislative power may be formed, it will if disposed be able to ruin the Country — He considered the taxing of exports to be in many cases highly politic. Virginia has found her account in taxing Tobacco. All Countries having peculiar articles tax the exportation of them; as France her wines and brandies. A tax here on lumber, would fall on the W. Indies & punish their restrictions on our trade. The same is true of live-stock and in some degree of flour. In case of a dearth in the West Indies, we may extort what we please. Taxes on exports are a necessary source of revenue. For a long time the people of America will not have money to pay direct taxes. Seize and sell their effects and you push them into Revolts —

Mr. Mercer was strenuous against giving Congress power to tax exports. Such taxes were impolitic, as encouraging the raising of articles not meant for exportation. The States had now a right where their situation permitted, to tax both the imports and exports of their uncommercial neighbours. It was enough for them to sacrifice one half of it. It had been said the Southern States had most need of naval protection. The reverse was the case. Were it not for promoting the carrying trade of the Northn States, the Southn States could let Edition: current; Page: [308] their trade go into foreign bottoms, where it would not need our protection. Virginia by taxing her tobacco had given an advantage to that of Maryland.

Mr. Sherman. To examine and compare the States in relation to imports and exports will be opening a boundless field. He thought the matter had been adjusted, and that imports were to be subject, and exports not, to be taxed. He thought it wrong to tax exports except it might be such articles as ought not to be exported. The complexity of the business in America would render an equal tax on exports impracticable. The oppression of the uncommercial States was guarded agst. by the power to regulate trade between the States. As to compelling foreigners, that might be done by regulating trade in general. The Government would not be trusted with such a power. Objections are most likely to be excited by considerations relating to taxes & money. A power to tax exports would shipwreck the whole.

Mr. Carrol was surprised that any objection should be made to an exception of exports from the power of taxation.

It was finally agreed that the question concerning exports shd. lie over for the place in which the exception stood in the report.9 〈Maryd. alone voting agst it〉10

Mr. Govr Morris moved to strike out “and emit bills on Edition: current; Page: [309] the credit of the U. States”12 — If the United States had credit such bills would be unnecessary: if they had not unjust & useless.

Mr Butler, 2ds. the motion.

Mr. Madison, will it not be sufficient to prohibit the making them a tender? This will remove the temptation to emit them with unjust views. And promissory notes in that shape may in some emergencies be best.

Mr. Govr. Morris. striking out the words will leave room still for notes of a responsible minister which will do all the good without the mischief. The Monied interest will oppose the plan of Government, if paper emissions be not prohibited.

Mr. Ghorum was for striking out, without inserting any prohibition. if the words stand they may suggest and lead to the measure.

Col Mason had doubts on the subject. Congs. he thought would not have the power unless it were expressed. Though he had a mortal hatred to paper money, yet as he could not foresee all emergences, he was unwilling to tie the hands of the Legislature. He observed that the late war could not have been carried on, had such a prohibition existed.

Mr. Ghorum- The power as far as it will be necessary or safe, is involved in that of borrowing.

Mr Mercer was a friend to paper money, though in the present state & temper of America, he should neither propose nor approve of such a measure. He was consequently opposed to a prohibition of it altogether. It will stamp suspicion on the Government to deny it a discretion on this point. It was impolitic also to excite the opposition of all those who were friends to paper money. The people of property would be sure to be on the side of the plan, and it was impolitic to purchase their further attachment with the loss of the opposite class of Citizens

Mr. Elseworth thought this a favorable moment to shut and bar the door against paper money. The mischiefs of the various experiments which had been made, were now Edition: current; Page: [310] fresh in the public mind and had excited the disgust of all the respectable part of America. By withholding the power from the new Governt. more friends of influence would be gained to it than by almost any thing else- Paper money can in no case be necessary- Give the Government credit, and other resources will offer- The power may do harm, never good.

Mr. Randolph, nothwithstanding his antipathy to paper money, could not agree to strike out the words, as he could not foresee all the occasions that might arise.

Mr Wilson. It will have a most salutary influence on the credit of the U. States to remove the possibility of paper money. This expedient can never succeed whilst its mischiefs are remembered. And as long as it can be resorted to, it will be a bar to other resources.

Mr. Butler. remarked that paper was a legal tender in no Country in Europe. He was urgent for disarming the Government of such a power.

Mr Mason was still averse to tying the hands of the Legislature altogether. If there was no example in Europe as just remarked it might be observed on the other side, that there was none in which the Government was restrained on this head.

Mr. Read, thought the words, if not struck out, would be as alarming as the mark of the Beast in Revelations.

Mr. Langdon had rather reject the whole plan than retain the three words “(and emit bills”).13

McHENRY16 Augt.

Agreed to Article VII from Sec: 1. to the paragraph “borrow money and emit bills on the credit of the united States inclusive, with the addition of the words “and post roads” and the omission of “and emit bills”.

Mr. Martin appeared in convention.

Edition: current; Page: [312]

FRIDAY, AUGUST 17, 1787.

JOURNAL Friday August 17. 1787.

It was moved and seconded to insert the word “joint” before the word “ballot” in the 9 clause of the 1 sect. 7 article

which passed in the affirmative [Ayes — 7; noes — 3.]

It was moved and seconded to strike out the 9 clause of the 1. sect. of the 7 article

Mr. Read moved to strike out the clause, leaving the appointment of the Treasurer as of other officers to the Executive. The Legislature was an improper body for Edition: current; Page: [315] appointments. Those of the State legislatures were a proof of it— The Executive being responsible would make a good choice.

Col. Mason in opposition to Mr. Reads motion desired it might be considered to whom the money would belong; if to the people, the legislature representing the people ought to appoint the keepers of it.

“To declare the law and punishment of piracies and felonies &c” &c considered.

Mr. 〈Madison〉 moved to strike out “and punishment” &c-

Mr. Mason doubts the safety of it, considering the strict rule of construction in criminal cases. He doubted also the propriety of taking the power in all these cases wholly from the States.

Mr Governr Morris thought it would be necessary to extend the authority farther, so as to provide for the punishment of counterfeiting in general. Bills of exchange for example might be forged in one State and carried into another:

It was suggested by some other member that foreign paper might be counterfeited by Citizens; and that it might be politic to provide by national authority for the punishment of it.

Mr Randolph did not conceive that expunging “the punishment” would be a constructive exclusion of the power. He doubted only the efficacy of the word “declare”.

Mr Wilson was in favor of the motion- Strictness was not necessary in giving authority to enact penal laws; though necessary in enacting & expounding them.

Mr. M〈adison,〉 and Mr. Randolph moved to insert, “define &.” before “punish”.

Mr. Wilson thought “felonies” sufficiently defined by Common law.

Mr. Dickenson concurred with Mr Wilson

Mr Mercer was in favor of the amendment.

Mr M〈adison.〉 felony at common law is vague.4 It is also defective. One defect is supplied by Stat: of Anne as to running away with vessels which at common law was a breach of trust only. Besides no foreign law should be a standard farther than is expressly adopted — If the laws of the States were to prevail on this subject, the citizens of different States would be subject to different punishments for the same offence at sea — There would be neither uniformity nor stability in the law — The proper remedy for all these difficulties was to vest the power proposed by the term “define” in the Natl. legislature.

Mr Govr. Morris would prefer designate to define, the latter being as he conceived, limited to the preexisting meaning. —— It was said by others to be applicable to the creating of offences also, and therefore suited the case both of felonies & of piracies. 〈The motion of Mr. M. & Mr. R was agreed to.〉5

Mr. Elseworth enlarged the motion so as to read “to define and punish piracies and felonies committed on the high seas, counterfeiting the securities and current coin of the U. States, and offences agst. the law of Nations” which was agreed to, nem con.

“To subdue a rebellion in any State, on the application of its legislature”

Edition: current; Page: [317]

Mr Pinkney moved to strike out “on the application of its legislature”

Mr Govr. Morris 2ds.

Mr L- Martin opposed it as giving a dangerous & unnecessary power. The consent of the State ought to precede the introduction of any extraneous force whatever.

Mr. Mercer supported the opposition of Mr. Martin.

Mr Elseworth proposed to add after “legislature” “or Executive”.

Mr Govr Morris. The Executive may possibly be at the head of the Rebellion. The Genl Govt. should enforce obedience in all cases where it may be necessary.

Mr. Ellsworth. In many cases The Genl. Govt. ought not to be able to interpose unless called upon. He was willing to vary his motion so as to read, “〈or without it〉6 when the legislature cannot meet.”

Mr. Gerry was agst. letting loose the myrmidons of the U. States on a State without its own consent. The States will be the best Judges in such cases. More blood would have been spilt in Massts in the late insurrection, if the Genl. authority had intermeddled.

Mr. Langdon was for striking out as moved by Mr. Pinkney. The apprehension of the national force, will have a salutary effect in preventing insurrections.

Mr Randolph- If the Natl. Legislature is to judge whether the State legislature can or cannot meet, that amendment would make the clause as objectionable as the motion of Mr Pinkney.

Mr. Govr. Morris. We are acting a very strange part. We first form a strong man to protect us, and at the same time wish to tie his hands behind him, The legislature may surely be trusted with such a power to preserve the public tranquillity.

On the motion to add “or without it (application) when the legislature cannot meet”

Mr Pinkney opposed the vesting this power in the Legislature.8 Its proceedings were too slow. It wd. meet but once a year. The Hs. of Reps. would be too numerous for such deliberations. The Senate would be the best depositary, being more acquainted with foreign affairs, and most capable of proper resolutions. If the States are equally represented in Senate, so as to give no advantage to large States, the power will notwithstanding be safe, as the small have their all at stake in such cases as well as the large States. It would be singular for one- authority to make war, and another peace.

Mr Butler. The Objections agst the Legislature lie in a great degree agst the Senate. He was for vesting the power in the President, who will have all the requisite qualities, and will not make war but when the Nation will support it.

Mr. M〈adison〉 and Mr Gerry moved to insert “declare,” striking out “make” war; leaving to the Executive the power to repel sudden attacks.

Mr Sharman thought it stood very well. The Executive shd. be able to repel and not to commence war. “Make” better than “declare” the latter narrowing the power too much.

Mr Gerry never expected to hear in a republic a motion to empower the Executive alone to declare war.

Edition: current; Page: [319]

Mr. Elseworth. there is a material difference between the cases of making war, and making peace. It shd. be more easy to get out of war, than into it. War also is a simple and overt declaration. peace attended with intricate & secret negociations.

Mr. Mason was agst giving the power of war to the Executive, because not 〈safely〉 to be trusted with it; or to the Senate, because not so constructed as to be entitled to it. He was for clogging rather than facilitating war; but for facilitating peace. He preferred “declare” to “make”.

On the Motion to insert declare — in place of Make, 〈it was agreed to.〉

Mr. Pinkney’s motion to strike out whole clause, disagd. to without call of States.

Mr Butler moved to give the Legislature power of peace, as they were to have that of war.

Mr Gerry 2ds. him. 8 Senators may possibly exercise the power if vested in that body, and 14 if all should be present; and may consequently give up part of the U. States. The Senate are more liable to be corrupted by an Enemy than the whole Legislature.

McHENRYAugust 17.

Agreed “to appoint a treasurer by joint Ballot; To constitute tribunals inferior to the supreme court; To make rules concerning captures on land and water;

expunged the next section and inserted

To define and punish piracies and felonies committed on the high seas;

To punish counterfeiting the securities and the current coin of the United States.

Struck out the clause To subdue a rebellion etc.

Debated the difference between a power to declare war, and to make war — amended by substituting declare — adjourned without a question on the clause.

Edition: current; Page: [321]

SATURDAY, AUGUST 18, 1787.

JOURNAL Saturday August 18. 1787.

The following additional powers proposed to be vested in the Legislature of the United States having been submitted to the consideration of the Convention — It was moved and seconded to refer them to the Committee to whom the proceedings of the Convention were referred

which passed in the affirmative

The propositions are as follows

To dispose of the unappropriated lands of the United States

To institute temporary governments for new States arising thereon

To regulate affairs with the Indians as well within as without the limits of the United States

To exercise exclusively Legislative authority at the seat of the general Government, and over a district around the same, not exceeding square miles: the consent of the Legislature of the State or States comprising such district being first obtained

To grant charters of incorporation in cases where the public good may require them, and the authority of a single State may be incompetent

To secure to literary authors their copy rights for a limited time

To establish an University

To encourage, by proper premiums and provisions, the advancement of useful knowledge and discoveries

To authorise the Executive to procure and hold for the use of the United States landed property for the erection of forts, magazines, and other necessary buildings

To fix and permanently establish the seat of Government of Edition: current; Page: [322] the United-States in which they shall possess the exclusive right of soil and jurisdiction

To establish seminaries for the promotion of literature and the arts and sciences

To grant charters of incorporation

To grant patents for useful inventions

To secure to authors exclusive rights for a certain time

To establish public institutions, rewards and immunities for the promotion of agriculture, commerce, trades, and manufactures.

That Funds which shall be appropriated for payment of public Creditors shall not during the time of such appropriation be diverted or applied to any other purpose — and to prepare a clause or clauses for restraining the Legislature of the United States from establishing a perpetual revenue

To secure the payment of the public debt.

To secure all Creditors, under the new Constitution, from a violation of the public faith. when pledged by the authority of the Legislature

To grant letters of marque and reprisal

To regulate Stages on the post-roads.

It was moved and seconded That a Committee to consist of a Member from each State be appointed to consider the necessity and expediency of the debts of the several States being assumed by the United States

It was moved and seconded to agree to the following resolution, namely

Resolved That this Convention will meet punctually at 10 o’clock every morning (Sundays excepted) and sit till four o’clock in the afternoon, at which time the President shall Edition: current; Page: [323] adjourn the Convention and that no motion for adjournment be allowed.

which passed in the affirmative [Ayes — 9; noes — 2.]

It was moved and seconded to insert the words “and support” between the word “raise” and the word “armies” in the 14. clause, 1 sect, 7 article

which passed in the affirmative

It was moved and seconded to strike out the words “build and equip” and to insert the words “provide and maintain” in the 15 clause, 1 sect. 7 article

which passed in the affirmative

It was moved and seconded to insert the following as a 16th clause, in the 1 sect. of the 7. article

“To make rules for the government and regulation of the land and naval forces”

which passed in the affirmative

It was moved and seconded to annex the following proviso to the last clause

“provided that in time of peace the army shall not consist of more than thousand men”

It was moved and seconded to insert the following as a clause in the 1 sect. of the 7 article

“to make laws for regulating and disciplining the militia of the several States, reserving to the several States the appointment of their militia Officers”

It was moved and seconded to postpone the last clause in order to take up the following

“To establish an uniformity of exercise and arms for the militia — and rules for their government when called into service under the authority of the United States: and to establish and regulate a militia in any State where it’s Legislature shall neglect to do it”

It was moved and seconded to refer the last two motions to a Committee

which passed in the affirmative

Edition: current; Page: [324]

and they were referred to the Committee of eleven. [Ayes — 8; noes — 2; divided — 1.]

And then the House adjourned till monday next at 10 o’clock A. M.

DETAIL OF AYES AND NOES.

New Hampshire

Massachusetts

Rhode Island

Connecticut

New York

New Jersey

Pennsylvania

Delaware

Maryland

Virginia

No Carolina

So Carolina

Georgia

Questions

ayes

noes

divided

[316]

no

aye

aye

no

dd

no

no

aye

aye

aye

aye

To refer Mr Rutledge’s proposition respecting the public debt to a Committee of a Member from each State

6

4

1

[317]

aye

aye

aye

aye

no

aye

no

aye

aye

aye

aye

To meet at 10 o’clock to adjourn at 4.

9

2

[318]

aye

aye

no

no

aye

aye

dd

aye

aye

aye

aye

To commit the two motions respectg militia to the Committee of 11.

8

2

1

MADISON Saturday August 18. in Convention

〈Mr- Madison3 submitted in order to be referred to the Committee of detail the following powers as proper to be added to those of the General Legislature

“To dispose of the unappropriated lands of the U. States”

“To institute temporary Governments for New States arising therein”

“To regulate affairs with the Indians as well within as without the limits of the U. States

Edition: current; Page: [325]

“To exercise exclusively Legislative authority at the seat of the General Government, and over a district around the same not, exceeding square miles; the Consent of the Legislature of the State or States comprising the same, being first obtained”

“To grant charters of incorporation in cases where the Public good may require them, and the authority of a single State may be incompetent”

“To secure to literary authors their copyrights for a limited time”

“To establish an University”

“To encourage by premiums & provisions, the advancement of useful knowledge and discoveries”

“To authorize the Executive to procure and hold for the use of the U — S. landed property for the erection of Forts, Magazines, and other necessary buildings”

These propositions were referred to the Committee of detail which had prepared the Report and at the same time the following which were moved by Mr. Pinkney:4 — in both cases unanimously.

“To fix and permanently establish the seat of Government of the U. S. in which they shall possess the exclusive right of soil & jurisdiction”

“To establish seminaries for the promotion of literature and the arts & sciences”

“To grant charters of incorporation”

“To grant patents for useful inventions”

“To secure to Authors exclusive rights for a certain time”

“To establish public institutions, rewards and immunities for the promotion of agriculture, commerce, trades and manufactures”

“That funds which shall be appropriated for the payment of public Creditors, shall not during the time of such appropriation, be diverted or applied to any other purpose- and that Edition: current; Page: [326] the Committee prepare a clause or clauses for restraining the Legislature of the U. S. from establishing a perpetual revenue”

“To secure the payment of the public debt”

“To secure all creditors under the New Constitution from a violation of the public faith when pledged by the authority of the Legislature”

“To grant letters of mark and reprisal”

“To regulate Stages on the post roads”〉

Mr Mason introduced the subject of regulating the militia.5 He thought such a power necessary to be given to the Genl. Government. He hoped there would be no standing army in time of peace, unless it might be for a few garrisons. The Militia ought therefore to be the more effectually prepared for the public defence. Thirteen States will never concur in any one system, if the displining of the Militia be left in their hands. If they will not give up the power over the whole, they probably will over a part as a select militia. He moved as an addition to the propositions just referred to the Committee of detail, & to be referred in like manner, “a power to regulate the militia”.

Mr. Gerry remarked that some provision ought to be made in favor of public Securities,6 and something inserted concerning letters of marque, which he thought not included in the power of war. He proposed that these subjects should also go to a Committee.

Mr. Rutlidge moved to refer a clause “that funds appropriated to public creditors should not be diverted to other purposes.”

Mr. Mason was much attached to the principle, but was afraid such a fetter might be dangerous in time of war. He suggested the necessity of preventing the danger of perpetual revenue which must of necessity subvert the liberty of any Country. If it be objected to on the principal of Mr. Rutlidge’s Edition: current; Page: [327] motion that Public Credit may require perpetual provisions, that case might be excepted; it being declared that in other cases, no taxes should be laid for a longer term than years. He considered the caution observed in Great Britain on this point as the paladium of the public liberty.

Mr. Rutlidge’s motion was referred — He then moved that a Grand Committee 〈be appointed to〉 consider the necessity and expediency of the U- States assuming all the State debts — A regular settlement between the Union & the several States would never take place. The assumption would be just as the State debts were contracted in the common defence. It was necessary, as the taxes on imports the only sure source of revenue were to be given up to the Union. It was politic, as by disburdening the people of the State debts it would conciliate them to the plan.

Mr. King and Mr Pinkney seconded the motion

(Col. Mason interposed a motion that the Committee prepare a clause for restraining perpetual revenue, which was agreed to nem- con.)

Mr. Sherman thought it would be better to authorize the Legislature to assume the State debts, than to say positively it should be done. He considered the measure as just and that it would have a good effect to say something about the Matter.

Mr. Elseworth differed from Mr. Sherman — As far as the State debts ought in equity to be assumed, he conceived that they might and would be so.

Mr. Pinkney observed that a great part of the State debts were of such a nature that although in point of policy and true equity 〈they ought〉, yet would they not be viewed in the light of fœderal expenditures.

Mr. King thought the matter of more consequence than Mr Elseworth seemed to do; and that it was well worthy of commitment. Besides the considerations of justice and policy which had been mentioned. it might be remarked that the State Creditors an active and formidable party would otherwise be opposed to a plan which transferred to the Union the best resources of the States without transferring the State Edition: current; Page: [328] debts at the same time. The State Creditors had generally been the strongest foes to the impost-plan. The State debts probably were of greater amount than the fœderal. He would not say that it was practicable to consolidate the debts, but he thought it would be prudent to have the subject considered by a Committee.

On Mr. Rutlidge’s motion, that Come be appointed to consider of the assumption &c

Mr. Rutlidge remarked on the length of the Session, the probable impatience of the public and the extreme anxiety of many members of the Convention to bring the business to an end; concluding with a motion that the Convention meet henceforward, precisely at 10 oC. A. M. and that precisely at 4 oC. P. M., the President adjourn the House without motion for the purpose. and that no motion to adjourn sooner be allowed9

Mr. Elseworth observed that a Council had not yet been provided for the President. He conceived there ought to be Edition: current; Page: [329] one. His proposition was that it should be composed of the President of the Senate- the Chief-Justice, and the Ministers as they might be estabd. for the departments of foreign & domestic affairs, war finance, and marine, who should advise but not conclude the President.

Mr Pinkney wished the proposition to lie over, as notice had been given for a like purpose by Mr. Govr. Morris who was not then on the floor. His own idea was that the President shd. be authorized to call for advice or not as he might chuse. Give him an able Council and it will thwart him; a weak one and he will shelter himself under their sanction.

Mr Gerry was agst. letting the heads of the departments, particularly of finance have any thing to do in business connected with legislation. He mentioned the Chief Justice also as particularly exceptionable. These men will also be so taken up with other matters as to neglect their own proper duties.

Mr. Dickenson urged that the great appointments should be made by the Legislature, in which case they might properly be consulted by the Executive — but not if made by the Executive himself — This subject by general Consent lay over; & the House proceeded to the clause “To raise armies”.

Mr. Ghorum moved to add “and support” after “raise”. Agreed to nem. con. and then the clause agreed to nem- con- as amended

Mr Gerry took notice that there was 〈no〉 check here agst. standing armies in time of peace. The existing Congs. is so constructed that it cannot of itself maintain an army. This wd. not be the case under the new system. The people were jealous on this head, and great opposition to the plan would spring from such an omission. He suspected that preparations of force were now making agst. it. (he seemed to allude to the activity of the Govr. of N. York at this crisis in disciplining the militia of that State.) He thought an army dangerous in time of peace & could never consent to a power to keep up an indefinite number. He proposed that there shall not be kept up in time of peace more than thousand troops. His idea was that the blank should be filled with two or three thousand.

Edition: current; Page: [330]

Instead of “to build and equip fleets” — “to provide & maintain a navy” agreed to nem. con as a more convenient definition of the power.

“To make rules for the Government and regulation of the land & naval forces,” — added from the existing Articles of Confederation.

Mr. L. Martin and Mr. Gerry now regularly moved “provided that in time of peace the army shall not consist of more than thousand men.”10

Genl. Pinkney asked whether no troops were ever to be raised untill an attack should be made on us?

Mr. Gerry. if there be no restriction, a few States may establish a military Govt.

Mr. Williamson, reminded him of Mr. Mason’s motion for limiting the appropriation of revenue as the best guard in this case.

Mr. Langdon saw no room for Mr. Gerry’s distrust of the Representatives of the people.

Mr. Dayton. preparations for war are generally made in peace; and a standing force of some sort may, for ought we know, become unavoidable. He should object to no restrictions consistent with these ideas.

The motion of Mr. Martin & Mr. Gerry was disagreed to nem. con.

Mr. Mason moved as an additional power “to make laws for the regulation and discipline of the Militia of the several States reserving to the States the appointment of the Officers”. He considered uniformity as necessary in the regulation of the Militia throughout the Union.

Genl Pinkney mentioned a case during the war in which a dissimilarity in the militia of different States had produced the most serious mischiefs. Uniformity was essential. The States would never keep up a proper discipline of their militia.

Mr. Elseworth was for going as far in submitting the militia to the Genl Government as might be necessary, but thought the motion of Mr. Mason went too far. He 〈moved〉 Edition: current; Page: [331] that the militia should have the same arms 〈& exercise and be under rules established by the Genl Govt. when in actual service of the U. States and when States neglect to provide regulations for militia, it shd. be regulated & established by the Legislature of U. S.〉11 The whole authority over the Militia ought by no means to be taken away from the States whose consequence would pine away to nothing after such a sacrifice of power. He thought the Genl Authority could not sufficiently pervade the Union for such a purpose, nor could it accommodate itself to the local genius of the people. It must be vain to ask the States to give the Militia out of their hands.

Mr Sherman 2ds. the motion.

Mr Dickenson. We are come now to a most important matter, that of the sword. His opinion was that the States never would nor ought to give up all authority over the Militia. He proposed to restrain the general power to one fourth part at a time, which by rotation would discipline the whole Militia.

Mr. Butler urged the necessity of submitting the whole Militia to the general Authority, which had the care of the general defence.

Mr. Mason- had suggested the idea of a select militia. He was led to think that would be in fact as much as the Genl. Govt could advantageously be charged with. He was afraid of creating insuperable objections to the plan. He withdrew his original motion, and moved a power “to make laws for regulating and disciplining the militia, not exceeding one tenth part in any one year, and reserving the appointment of officers to the States.”

Genl Pinkney, renewed Mr. Mason’s original motion. For a part to be under the genl. and a part under the State Govts. wd be an incurable evil. he saw no room for such distrust of the Genl Govt.

Mr. Langdon 2ds. Genl. Pinkney’s renewal. He saw no more reason to be afraid of the Genl. Govt than of the State Govts. He was more apprehensive of the confusion of the different authorities on this subject, than of either.

Edition: current; Page: [332]

Mr Madison thought the regulation of the Militia naturally appertaining to the authority charged with the public defence. It did not seem in its nature to be divisible between two distinct authorities. If the States would trust the Genl. Govt. with a power over the public treasure, they would from the same consideration of necessity grant it the direction of the public force. Those who had a full view of the public situation wd. from a sense of the danger, guard agst. it: the States would not be separately impressed with the general situation, nor have the due confidence in the concurrent exertions of each other.

Mr. Elseworth- considered the idea of a select militia as impracticable; & if it were not it would be followed by a ruinous declension of the great body of the Militia. The States will never submit to the same militia laws. Three or four shilling’s as a penalty will enforce obedience better in New England, than forty lashes in some other places.

Mr. Pinkney thought the power such an one as could not be abused, and that the States would see the necessity of surrendering it. He had however but a scanty faith in Militia. There must be 〈also〉 a real military force — This alone can 〈effectually answer the purpose.〉 The United States had been making an experiment without it, and we see the consequence in their rapid approaches toward anarchy.*

Mr Sherman, took notice that the States might want their Militia for defence agst invasions and insurrections, and for enforcing obedience to their laws. They will not give up this point- In giving up that of taxation, they retain a concurrent power of raising money for their own use.

Mr. Gerry thought this the last point remaining to be surrendered. If it be agreed to by the Convention, the plan will have as black a mark as was set on Cain. He had no such confidence in the Genl. Govt. as some Gentlemen possessed, and believed it would be found that the States have not.

Col. Mason. thought there was great weight in the remarks of Mr. Sherman- and moved an exception to his motion Edition: current; Page: [333] “of such part of the Militia as might be required by the States for their own use.”

Mr. Read doubted the propriety of leaving the appointment of the Militia officers in the States. In some States they are elected by the legislatures; in others by the people themselves. He thought at least an appointment by the State Executives ought to be insisted on.

On committing to the grand Committee last appointed, the latter motion of Col. Mason, & the original one revived by Gel Pinkney

McHENRYAugt. 18.

To make war, to raise armies “to build and equip fleets amended to “declare war, to raise and support armies, to provide and maintain fleets” to which was added “to make rules for the government and regulation of the land and naval forces.

The next clause postponed.

Edition: current; Page: [334]

MONDAY, AUGUST 20, 1787.

JOURNAL Monday August 20th. 1787.

It was moved and seconded to refer the following propositions to the Committee of five.

which passed in the affirmative.

Each House shall be the Judge of it’s own privileges, and shall have authority to punish by imprisonment every person violating the same: or who, in the place where the Legislature may be sitting and during the time of it’s session, shall threaten any of it’s members for any thing said or done in the House: or who shall assault any of them therefor — or who shall assault, or arrest any witness or other person ordered to attend either of the House in his way going or returning; or who shall rescue any person arrested by their order. Each Branch of the Legislature, as well as the supreme Executive shall have authority to require the opinions of the supreme Judicial Court upon important questions of law, and upon solemn occasions

The privileges and benefit of the writ of habeas corpus shall be enjoyed in this government in the most expeditious and ample manner: and shall not be suspended by the Legislature except upon the most urgent and pressing occasions, and for a limited time not exceeding months.

The liberty of the Press shall be inviolably preserved.

No Troops shall be kept up in time of peace, but by consent of the Legislature

The military shall always be subordinate to the civil power, and no grants of money shall be made by the Legislature for supporting military land forces for more than one year at a time

Edition: current; Page: [335]

No Soldier shall be quartered in any house in time of peace without consent of the Owner.

No person holding the Office of President of the United States — a Judge of their supreme Court — Secretary for the Department of foreign affairs — of Finance — of Marine — of War — or of

shall be capable of holding at the same time any other office of trust or emolument under the United States, or an individual State.

No religious test or qualification shall ever be annexed to any oath of office under the authority of the United States:

The United States shall be for ever considered as one Body-corporate and politic in law, and entitled to all the rights, privileges and immunities which to Bodies Corporate do, or ought to appertain.

The Legislature of the United States shall have the power of making the great seal, which shall be kept by the President of the United States or in his absence by the President of the Senate, to be used by them as the occasion may require ——— It shall be called the great Seal of the United-States and shall be affixed to all laws.

all commissions and writs shall run in the name of the United States.

The jurisdiction of the supreme court shall be extended to all controversies between the United States and an individual State — or the United States and the Citizen of an individual State.

To assist the President in conducting the Public affairs there shall be a Council of State composed of the following Officers.

1. The Chief Justice of the supreme Court, who shall from time to time recommend such alterations of, and additions to, the Laws of the United-States as may in his opinion be necessary to the due administration of Justice, and such as may promote useful learning and inculcate sound morality throughout the Union: He shall be President of the Council in the absence of the President.

2. The Secretary of domestic-affairs who shall be appointed by the President and hold his office during pleasure It shall Edition: current; Page: [336] be his duty to attend to matters of general police, the state of agriculture and manufactures, the opening of roads and navigations, and the facilitating communications through the United States, and he shall from time to time recommend such measures and establishments as may tend to promote those objects.

3 The Secretary of Commerce and Finance who shall also be appointed by the President during pleasure. It shall be his duty to superintend all matters relating to the public finances, to prepare and report Plans of revenue and for the regulation of expenditures, and also to recommend such things as may in his judgment promote the commercial interests of the United-States.

4. The Secretary of foreign affairs who shall also be appointed by the President during pleasure — It shall be his duty to correspond with all foreign Ministers, prepare plans of Treaties, and consider such as may be transmitted from abroad — and generally to attend to the Interests of the United States, in their connections with foreign Powers.

5. The Secretary of war who shall also be appointed by the President during pleasure. — It shall be his duty to superintend every thing relating to the war Department such as the raising and equipping of Troops, the care of military Stores, public Fortifications, arsenals, and the like — also in time of war to prepare and recommend Plans of offence and defence.

6 The Secretary of the Marine who shall also be appointed by the President during pleasure — It shall be his duty to superintend every thing relating to the marine Department, the public ships, Dock-yards, naval stores, and Arsenals — also in time of war to prepare and recommend Plans of offence and defence.

The President shall also appoint a Secretary of State to hold his office during pleasure; who shall be Secretary of the Council of State, and also public Secretary to the President. — It shall be his duty to prepare all public dispatches from the President, which he shall countersign.

The President may from time to time submit any matter to the discussion of the Council of State, and he may require Edition: current; Page: [337] the written opinions of any one or more of the Members; But he shall in all cases exercise his own judgment, and either conform to such opinions or not as he may think proper: and every officer above mentioned shall be responsible for his opinion on the affairs relating to his particular Department.

Each of the Officers abovementioned shall be liable to impeachment and removal from office for neglect of duty, malversation, or corruption

That the Committee be directed to report qualifications for the President of the United-States — and a mode for trying the supreme Judges in cases of impeachment.

It was moved and seconded to postpone the consideration of the 17 clause, 1 sect. 7 article

which passed in the affirmative

It was moved and seconded to insert the following clause in the 1. sect. 7 article

“To make sumptuary laws”

which passed in the negative [Ayes — 3; noes — 8.]

It was moved and seconded to insert the following clause in the 1st sect. of the 7 article

“To establish all offices”

which passed in the negative [Ayes — 2; noes — 9.]

On the question to agree to the last clause of the 1st sect. 7 article, as reported,

It was moved and seconded to insert the words “some overt-act of” after the word “in” in the 2 sect. 7 article and to strike out the word “and” before the words “in adhering” and to insert the word “or”

It was moved and seconded to strike out the words “or any of them” 2 section 7 article

which passed in the affirmative

It was moved and seconded to postpone the consideration of the 2nd sect. 7 article in order to take up the following.

“Whereas it is essential to the preservation of Liberty to define precisely and exclusively what shall constitute the crime of Treason it is therefore ordained declared and established that if a man do levy war against the United States within their Territories or be adherent to the enemies of the United States within the said territories giving to them aid and comfort within their Territories or elsewhere, and thereof be provably attainted of open deed by the People of his condition he shall be adjudged guilty of treason”

On the question to postpone

it passed in the negative. [Ayes — 2; noes — 8.]

It was moved and seconded to strike out the words “against the United States” 1st line, 2 sect. 7 article

which passed in the affirmative [Ayes — 8; noes — 2.]

It was moved and seconded to insert the words “to the same overt-act.” after the word “witnesses” 2 sect. 7 article

which passed in the affirmative [Ayes — 8; noes — 3.]

It was moved and seconded to strike the words “some overt-act” out of the 1st line, 2 sect. 7 article3

which passed in the affirmative

It was moved and seconded to insert the words

“Sole and exclusive” before the word “power” in the 2 clause, 2 sect, 7 article.

which passed in the negative [Ayes — 5; noes — 6.]

It was moved and seconded to re-instate the words

“against the United States” in the first line, 2 sect. 7 article

which passed in the affirmative [Ayes — 6; noes — 5.]

It was moved and seconded to strike out the words “of the United States” in the 3rd line 2 sect. 7 article

which passed in the affirmative

Edition: current; Page: [339]

It was moved and seconded to amend the 1st clause of the 2 sect. 7 article to read

“Treason against the United States shall consist only in levying war against them, or in adhering to their enemies”

which passed in the affirmative

It was moved and seconded to add the words

“giving them aid and comfort” after the word “enemies” in the 2 section, 7 article.

which passed in the affirmative [Ayes — 8; noes — 3.]

It was moved and seconded to add after the words “overt act” the words “or on confession in open court” 2 section, 7 article.

which passed in the affirmative [Ayes — 7; noes — 3; divided — 1.]

On the question to agree to the 2nd section of the 7 article as amended

it passed in the affirmative.

It was moved and seconded to strike the words

“white and other” out of the 3rd sect. 7 article

which passed in the affirmative.

It was moved and seconded to strike out the word

“six” and to insert the word “three” in the 3rd section of the 7 article.

which passed in the affirmative. [Ayes — 9; noes — 2.]

It was moved and seconded to add the following clause to the 3rd section of the 7 article

“That from the first meeting of the Legislature of the United States until a Census shall be taken, all monies for supplying the public Treasury, by direct taxation shall be raised from the several States according to the number of their representatives respectively in the first Branch”

MADISON Monday August 20 — in Convention.

〈Mr. Pinkney4 submitted to the House, in order to be Edition: current; Page: [341] referred to the Committee of detail, the following propositions — “Each House shall be the Judge of its own privileges, and shall have authority to punish by imprisonment every person violating the same; or who, in the place where the Legislature may be sitting and during the time of its Session, shall threaten any of its members for any thing said or done in the House, or who shall assault any of them therefor — or who shall assault or arrest any witness or other person ordered to attend either of the Houses in his way going or returning; or who shall rescue any person arrested by their order.”

“Each branch of the Legislature, as well as the Supreme Executive shall have authority to require the opinions of the supreme Judicial Court upon important questions of law, and upon solemn occasions”

“The privileges and benefit of the Writ of Habeas corpus shall be enjoyed in this Government in the most expeditious and ample manner; and shall not be suspended by the Legislature except upon the most urgent and pressing occasions, and for a limited time not exceeding months.”

“The liberty of the Press shall be inviolably preserved”

“No troops shall be kept up in time of peace, but by consent of the Legislature”

“The military shall always be subordinate to the Civil power, and no grants of money shall be made by the Legislature for supporting military Land forces, for more than one year at a time”

“No soldier shall be quartered in any House in time of peace without consent of the owner.”

“No person holding the office of President of the U. S., a Judge of their Supreme Court, Secretary for the department of Foreign Affairs, of Finance, of Marine, of War, or of , Edition: current; Page: [342] shall be capable of holding at the same time any other office of Trust or Emolument under the U. S. or an individual State”

“No religious test or qualification shall ever be annexed to any oath of office under the authority of the U. S.”

“The U. S. shall be for ever considered as one Body corporate and politic in law, and entitled to all the rights privileges, and immunities, which to Bodies corporate do or ought to appertain”

“The Legislature of the U. S. shall have the power of making the great Seal which shall be kept by the President of the U. S. or in his absence by the President of the Senate, to be used by them as the occasion may require. — It shall be called the great Seal of the U. S. and shall be affixed to all laws.”

“All Commissions and writs shall run in the name of the U. S.”

“The Jurisdiction of the supreme Court shall be extended to all controversies between the U. S. and an individual State, or the U. S. and the Citizens of an individual State”

These propositions were referred to the Committee of detail without debate or consideration of them, by the House.

Mr. Govr. Morris 2ded. by Mr. Pinkney submitted the following propositions which were in like manner referred to the Committee of Detail.

“To assist the President in conducting the Public affairs there shall be a Council of State composed of the following officers — 1. The Chief Justice of the Supreme Court, who shall from time to time recommend such alterations of and additions to the laws of the U. S. as may in his opinion be necessary to the due administration of Justice, and such as may promote useful learning and inculcate sound morality throughout the Union: He shall be President of the Council in the absence of the President

2. The Secretary of Domestic Affairs who shall be appointed by the President and hold his office during pleasure. It shall be his duty to attend to matters of general police, the State Edition: current; Page: [343] of Agriculture and manufactures, the opening of roads and navigations, and the facilitating communications thro’ the U. States; and he shall from time to time recommend such measures and establishments as may tend to promote those objects.

3. The Secretary of Commerce and Finance who shall also be appointed by the President during pleasure. It shall be his duty to superintend all matters relating to the public finances, to prepare & report plans of revenue and for the regulation of expenditures, and also to recommend such things as may in his Judgment promote the commercial interests of the U. S.

4. The Secretary of foreign affairs who shall also be appointed by the President during pleasure. It shall be his duty to correspond with all foreign Ministers, prepare plans of Treaties, & consider such as may be transmitted from abroad; and generally to attend to the interests of the U- S- in their connections with foreign powers.

5. The Secretary of War who shall also be appointed by the President during pleasure. It shall be his duty to superintend every thing relating to the war-Department, such as the raising and equipping of troops, the care of military Stores — public fortifications, arsenals & the like — also in time of war to prepare & recommend plans of offence and Defence.

6. The Secretary of the Marine who shall also be appointed during pleasure — It shall be his duty to superintend every thing relating to the Marine-Department, the public Ships, Dock-Yards, Naval-Stores & arsenals — also in the time of war to prepare and recommend plans of offence and defence.

The President shall also appoint a Secretary of State to hold his office during pleasure; who shall be Secretary to the Council of State, and also public Secretary to the President. It shall be his duty to prepare all public despatches from the President which he shall countersign

The President may from time to time submit any matter to the discussion of the Council of State, and he may require the written opinions of any one or more of the members: But he shall in all cases exercise his own judgment, and either Edition: current; Page: [344] Conform to such opinions or not as he may think proper; and every officer abovementioned shall be responsible for his opinion on the affairs relating to his particular Department.

Each of the officers abovementioned shall be liable to impeachment & removal from office for neglect of duty malversation, or corruption”〉4a

Mr Gerry moved “that the Committee be instructed to report proper qualifications for the President, and a mode of trying 〈the Supreme〉 Judges 〈in cases of〉 impeachment.5

The clause “to call forth the aid of the Militia &c- was postponed till report should be made as to the power over the Militia referred yesterday to the Grand Committee 〈of eleven〉.

Mr. Mason moved to enable Congress “to enact sumptuary laws.” No Government can be maintained unless the manners be made consonant to it. Such a discretionary power may do good and can do no harm. A proper regulation of excises & of trade may do a great deal but it is best to have an express provision. It was objected to sumptuary laws that they were contrary to nature. This was a vulgar error. The love of distinction it is true is natural; but the object of sumptuary laws is not to extinguish this principle but to give it a proper direction.

Mr. Elseworth, The best remedy is to enforce taxes & debts. As far as the regulation of eating & drinking can be reasonable, it is provided for in the power of taxation.

Mr Govr. Morris argued that sumptuary laws tended to create a landed Nobility, by fixing in the great-landholders and their posterity their present possessions.

“And to make all laws necessary and proper for carrying into execution the foregoing powers, and all other powers Edition: current; Page: [345] vested, by this Constitution, in the Government of the U. S. or any department or officer thereof.”6

Mr. M〈adison〉 and Mr. Pinkney moved to insert between “laws” and “necessary” “and establish all offices”. it appearing to them liable to cavil that the latter was not included in the former.

Mr. Govr. Morris. Mr. Wilson, Mr Rutlidge and Mr. Elseworth urged that the amendment could not be necessary.

Mr. M〈adison,〉 thought the definition too narrow. It did not appear to go as far as the Stat. of Edwd. III. He did not see why more latitude might not be left to the Legislature. It wd. be as safe as in the hands of State legislatures; and it was inconvenient to bar a discretion which experience might enlighten, and which might be applied to good purposes as well as be abused.

Mr Mason was for pursuing the Stat: of Edwd. III.

Mr. Govr Morris was for giving to the Union an exclusive right to declare what shd. be treason. In case of a contest between the U- S- and a particular State, the people of the latter must, under the disjunctive terms of the clause, be traitors to 〈one〉 or other authority.

Mr Randolph thought the clause defective in adopting the words “in adhering” only. The British Stat: adds. “giving them aid 〈and〉8 comfort” which had a more extensive meaning.

Edition: current; Page: [346]

Mr. Elseworth considered the definition as the same in fact with that of the Statute.

Mr. Govr Morris “adhering” does not go so far as giving aid 〈and〉8a Comfort” or the latter words may be restrictive of “adhering”. in either case the Statute is not pursued.

MrWilson held “giving aid and comfort” to be explanatory, not operative words; and that it was better to omit them —

Mr Dickenson, thought the addition of “giving aid & comfort” unnecessary & improper; being too vague and extending too far- He wished to know what was meant by the “testimony of two witnesses”, whether they were to be witnesses to the same overt act or to different overt acts. He thought also that proof of an overt-act ought to be expressed as essential in the case.

Docr Johnson considered “giving aid & comfort” as explanatory of “adhering” & that something should be inserted in the definition concerning overt-acts. He contended that Treason could not be both agst. the U. States — and individual States; being an offence agst the Sovereignty which can be but one in the same community-

Mr. M〈adison〉 remarked that “and” before “in adhering” should be changed into “or” otherwise both offences 〈viz of levying war, & of adhering to the Enemy〉 might be necessary to constitute Treason. He added that as the definition here was of treason against the U. S. it would seem that the individual States wd. be left in possession of a concurrent power so far as to define & punish treason particularly agst. themselves; which might involve double punishmt.

It was moved that the whole clause be recommitted 〈which was lost, the votes being equally divided.〉

Mr. Wilson & Docr. Johnson moved, that “or any of them” after “United States” be struck out in order to remove the embarrassment: which was agreed to nem. con —

Edition: current; Page: [347]

Mr M〈adison〉 This has not removed the embarrassment. The same Act might be treason agst. the United States as here defined — and agst a particular State according to its laws.

Mr Elseworth — There can be no danger to the Genl authority from this; as the laws of the U. States are to be paramount.

Docr Johnson was still of opinion there could be no Treason agst a particular State. It could not even at present, as the Confederation now stands; the Sovereignty being in the Union; much less can it be under the proposed System.

Col. Mason. The United States will have a qualified sovereignty only. The individual States will retain a part of the Sovereignty. An Act may be treason agst. a particular State which is not so against the U. States. He cited the Rebellion of Bacon in Virginia as an illustration of the doctrine.

Docr. Johnson: That case would amount to Treason agst the Sovereign, the supreme Sovereign, the United States —

Mr. King observed that the controversy relating to Treason might be of less magnitude than was supposed; as the legislature might punish capitally under other names than Treason.

Mr. Govr Morris and Mr Randolph wished to substitute the words of the British Statute 〈and moved to postpone Sect. 2. art VII in order to consider the following substitute — “Whereas it is essential to the preservation of liberty to define precisely and exclusively what shall constitute the crime of Treason, it is therefore ordained, declared & established, that if a man do levy war agst. the U. S. within their territories, or be adherent to the enemies of the U. S. within the said territories, giving them aid and comfort within their territories or elsewhere, and thereof be provably attainted of open deed by the People of his condition, he shall be adjudged guilty of Treason”〉9

Mr King moved to insert before the word “power” the word “sole”, giving the U. States the exclusive right to declare the punishment of Treason.

Mr Broom 2ds. the motion-

Mr Wilson in cases of a general nature, treason can only be agst the U- States. and in such they shd have the sole right to declare the punishment — yet in many cases it may be otherwise. The subject was however intricate and he distrusted his present judgment on it.

Mr King this amendment results from the vote defining treason generally by striking out agst. the U. States; which excludes any treason agst particular States. These may however punish offences as high misdemesnors.

MrM — 〈adison〉 was not satisfied with the footing on which the clause now stood. As treason agst the U- States involves Treason agst. particular States, and vice versa, the same act may be twice tried & punished by the different authorities — Mr Govr Morris viewed the matter in the same lights —

〈It was moved & 2ded to amend the Sentence to read — “Treason agst. the U. S. shall consist only in levying war against them, or in adhering to their enemies” which was agreed to.〉10

Col- Mason moved to insert the words “giving 〈them〉 aid comfort”. as restrictive of “adhering to their Enemies &c”- the latter he thought would be otherwise too indefinite — This motion was agreed to 〈Cont: Del: & Georgia only being in the Negative.〉10

Mr King asked what was the precise meaning of direct taxation? No one answd.

Mr. Gerry moved 〈to add to the 3d. Sect. art. VII, the following clause. “That from the first meeting of the Legislature of the U. S. until a Census shall be taken all monies for supplying the public Treasury by direct taxation shall be raised from the several States according to the number of their Representatives respectively in the first branch”〉13

Mr. Langdon. This would bear unreasonably hard on N. H. and he must be agst it.

Mr. Carrol. opposed it. The number of Reps. did not admit of a proportion exact enough for a rule of taxation —

McHENRYAugust 20.

The following one agreed to.

Sect. 2. Amended to read. Treason against the U. S. shall consist only in levying war against them, or in adhering to their enemies giving them aid and comfort. The legislature shall have power to declare the punishment of treason. No person shall be convicted of treason unless on confession in open court, or the testimony of two witnesses to the same overt act.

Mr. Mason moved to add to the 1 sect of the VII article.

To make sumptuary laws.

Governeur Morris. sump. laws were calculated to continue great landed estates for ever in the same families — If men had no temptation to dispose of their money they would not sell their estates.

Negatived.

Amended section 3 by striking out the words in the second line white and other, and the word six in the 5 line and substituting the word three — but adjourned without a question on the section.

Edition: current; Page: [352]

TUESDAY, AUGUST 21, 1787.

JOURNAL Tuesday August 21. 1787.

The honorable Mr Livingston, from the Committee of eleven to whom were referred

a proposition respecting the debts of the several States, entered on the Journal of the 18 instant and a proposition respecting the militia

entered on the Journal of the 18 instant informed the House that the Committee were prepared to report — and had directed him to submit the same to the consideration of the House.

The report was then delivered in at the Secretary’s-table, and, being read throughout, is as follows.

“The Legislature of the United-States shall have power to fulfil the engagements which have been entered into by Congress, and to discharge as well the debts of the United States, as the debts incurred by the several States during the late war, for the common defence and general welfare.”

“To make laws for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively, the appointment of the Officers, and the authority of training the militia according to the discipline prescribed by the United States”

It was moved and seconded to postpone the consideration of the above report

which passed in the affirmative

On the question to agree to the 3rd sect. of the 7 article as amended

it passed in the affirmative [Ayes — 10; noes — 1.]

Edition: current; Page: [353]

It was moved and seconded to add the following clause to the 3rd sect. of the 7 article

“And all accounts of supplies furnished, services performed, and monies advanced by the several States, to the United States; or by the United States to the several States shall be adjusted by the same rule.”

The last motion being withdrawn,

It was moved and seconded to add the following clause to the 3rd section of the 7th article.

“By this rule the several quotas of the States shall be determined in settling the expences of the late war”

It was moved and seconded to postpone the consideration of the last motion

which passed in the affirmative.

It was moved and seconded to add the following clause to the 3rd sect. of the 7 article

That from the first meeting of the Legislature of the United States until a Census shall be taken, all monies for supplying the public Treasury, by direct taxation, shall be raised from the several States according to the number of their representatives respectively in the first Branch.

It was moved and seconded to annex the following amendment to the last motion.

“subject to a final liquidation by the foregoing rule when a Census shall have been taken”

On the question to agree to the amendment

it passed in the affirmative

On the question to agree to the Proposition and amendment it passed in the negative. [Ayes — 2; noes — 8; divided — 1.]1

On the question to take up the amendment offered to the 12 sect of the 6 article, entered on the Journal of the 15th instant, and then postponed

it passed in the negative [Ayes — 5; noes — 6.]

It was moved and seconded to add the following clause to the 3rd sect. 7 article

“and whenever the Legislature of the United States shall Edition: current; Page: [354] find it necessary that revenue should be raised by direct taxation, having apportioned the same, according to the above rule, on the several States, requisitions shall be made of the respective States to pay into the Continental Treasury their respective quotas within a time in the said requisition specified, and in case of any of the States failing to comply with such requisitions, then and then only to devise and pass acts directing the mode and authorising the collection of the same.”

It was moved and seconded to insert the following clause after the word “duty” in the first line 4 sect. 7 article

“for the purpose of revenue”

which passed in the negative. [Ayes — 3; noes — 8.]

It was moved and seconded to amend the first clause of the 4 sect. 7 article by inserting the following words

“unless by consent of two thirds of the legislature”

which passed in the negative [Ayes — 5; noes — 6.]

On the question to agree to the first clause of the 4 section of the 7 article, as reported,

it passed in the affirmative. [Ayes — 7; noes — 4.]

It was moved and seconded to insert the word “free” before the word “persons” in the 4 sect. of the 7 article.

Before the question was taken on the last motion

The House adjourned

Edition: current; Page: [355]

DETAIL OF AYES AND NOES

New Hampshire

Massachusetts

Rhode Island

Connecticut

New York

New Jersey

Pennsylvania

Delaware

Maryland

Virginia

No Carolina

So Carolina

Georgia

Questions

ayes

noes

divided

[330]

aye

aye

aye

aye

aye

no

aye

aye

aye

aye

aye

To agree to the 3 sect. 7 article as amended

10

1

[331]

no

aye

no

no

no

no

no

no

dd

aye

no

To agree to the Proposition made by Mr Gerry until a Census be taken &ca

2

8

1

[332]

aye

no

aye

no

no

no

aye

aye

aye

no

no

To take up the amendmt offered to ye 12 sect. 4 art. entered on the Journal of the 15. august

5

6

[333]

no

aye

no

no

dd

no

no

no

no

To agree to Mr. Martin’s proposition respecting direct taxation

1

7

1

[334]

no

no

no

aye

aye

aye

no

no

no

no

no

To agree “to the words” for the purpose of revenue” 1st line 4 sect. 7 article

3

8

[335]

aye

aye

no

aye

aye

aye

no

no

no

no

no

“unless by two-thirds of the Legislature” 1 line-4 sect. 7 article

5

6

[336]

no

aye

aye

no

no

no

aye

aye

aye

aye

aye

To agree to ye 1st clause — 4 sect. 7 article

7

4

MADISON Tuesday August 21. in Convention

〈Governour Livingston, from the Committee of Eleven to whom was referred the propositions respecting the debts of the several States, and also the Militia, entered on the 18th. inst: delivered the following report:3

“The Legislature of the U. S. shall have power to fulfil the engagements which have been entered into by Congress, and to discharge as well the debts of the U- S: as the debts Edition: current; Page: [356] incurred by the several States during the late war, for the common defence and general welfare”4

“To make laws for organizing arming and disciplining the Militia, and for governing such part of them as may be employed in the service of the U— S reserving to the States respectively, the appointment of the officers, and the authority of training the Militia according to the discipline prescribed by the U. States”〉

Mr. Gerry considered giving the power only, without adopting the obligation, as destroying the security now enjoyed by the public creditors of the U— States. He enlarged on the merit of this class of citizens, and the solemn faith which had been pledged under the existing Confederation. If their situation should be changed as here proposed great opposition would be excited agst. the plan — He urged also that as the States had made different degrees of exertion to sink their respective debts, those who had done most would be alarmed, if they were now to be saddled with a share of the debts of States which had done least.

Mr. Sherman. It means neither more nor less than the confederation as it relates to this subject.

Mr Elseworth moved that the Report delivered in by Govr. Livingston should lie on the table. Agreed to nem. con.5

Art: VII. sect. 3. resumed.6 — Mr. Dickenson moved to postpone this in order to reconsider Art: IV. sect. 4. and to limit the number of representatives to be allowed to the large States. Unless this were done the small States would be reduced to entire insignificancy, and encouragement given to the importation of slaves.

Mr. Sherman would agree to such a reconsideration, but did not see the necessity of postponing the section before the House. — Mr. Dickenson withdrew his motion.

Mr. Sherman moved 〈to add to sect 3, the following clause “and all accounts of supplies furnished, services performed, and monies advanced by the several States to the U— States, or by the U. S. to the several States shall be adjusted by the same rule.”〉8

Mr. Governr. Morris 2ds. the motion.

Mr. Ghorum, thought it wrong to insert this in the Constitution. The Legislature will no doubt do what is right. The present Congress have such a power and are now exercising it.

Mr Sherman unless some rule be expressly given none will exist under the new system.

Mr. Elseworth. 〈Though〉 The contracts of Congress will be binding, there will be no rule for executing them on the States; — and one ought to be provided.

Mr Sherman withdrew his motion to make way for one of Mr Williamson to add to sect- 3. “By this rule the 〈several〉 quotas of the States 〈shall be determined in〉 Settling the expences of the late war”-9

Mr. Carrol brought into view the difficulty that might arise on this subject from the establishment of the Constitution as intended without the Unanimous consent of the States

Mr Williamson’s motion was postponed nem. con.

Art: VI sect. 12.10 which had been postponed Aug: 15. was now called for by Col. Mason. who wished to know how the proposed amendment as to money bills would be decided, before he agreed to any further points.

Mr. Gerry’s motion of yesterday that previous to a census, direct taxation be proportioned on the States according to the number of Representatives, was taken up- He observed that the principal acts of Government would probably take place within that period, and it was but reasonable that the States should pay in proportion to their share in them.

Edition: current; Page: [358]

Mr. Elseworth thought such a rule unjust- there was a great difference between the number of Represents. and the number of inhabitants as a rule in this case. Even if the former were proportioned as nearly as possible to the latter, it would be a very inaccurate rule- A State might have one Representative only, that had inhabitants enough for 1½ or more, if fractions could be applied — &c —. He proposed to amend the motion by adding 〈the words “subject to a final liquidation by the foregoing rule when a census shall have been taken.”〉11

Mr. M〈adison.〉 The last appointment of Congs., on which the number of Representatives was founded, was conjectural and meant only as a temporary rule till a Census should be established.

Mr. Read. The requisitions of Congs. had been accommodated to the impoverishments produced by the war; and to other local and temporary circumstances —

Mr. Williamson opposed Mr Gerry’s motion

Mr Langdon was not here when N. H. was allowed three members. If it was more than her share; he did not wish for them.

Mr. Butler contended warmly for Mr Gerry’s motion as founded in reason and equity.

Mr. Elseworth’s proviso to Mr. Gerry’s motion was agreed to nem con.

Mr. King thought the power of taxation given to the Legislature rendered the motion of Mr Gerry altogether unnecessary.

Mr L. Martin. The power of taxation is most likely to be criticised by the public. Direct taxation should not be used but in cases of absolute necessity; and then the States will be best Judges of the mode. He therefore moved 〈the following addition to sect: 3. Art: VII “And whenever the Legislature of the U: S: shall find it necessary that revenue should be raised by direct taxation, having apportioned the same, according to the above rule on the several States, — requisitions shall be made of the respective States to pay into the Continental Treasury their respective quotas within a time in the said requisitions specified; and in case of any of the States failing to comply with such requisitions, then and then only to devise and pass acts directing the mode, and authorizing the collection of the same”〉13

Mr McHenry 2ded. the motion — there was no debate, and on the question

Art. VII. sect. 4.15 — Mr. Langdon. by this section the States are left at liberty to tax exports. N. H. therefore with other non-exporting States, will be subject to be taxed by the States exporting its produce. This could not be admitted. It seems to be feared that the Northern States will oppress the trade of the Southn. This may be guarded agst by requiring the concurrence of ⅔ or ¾ of the legislature in such cases.

Mr Elseworth— It is best as it stands— The power of Edition: current; Page: [360] regulating trade between the States will protect them agst each other — Should this not be the case, the attempts of one to tax the produce of another passing through its hands, will force a direct exportation and defeat themselves — There are solid reasons agst. Congs taxing exports. 1. it will discourage industry, as taxes on imports discourage luxury. 2. The produce of different States is such as to prevent uniformity in such taxes. there are indeed but a few articles that could be taxed at all; as Tobo. rice & indigo, and a tax on these alone would be partial & unjust. 3. The taxing of exports would engender incurable jealousies.

Mr Williamson. Tho’ N— C. has been taxed by Virga by a duty on 12,000 Hhs of her Tobo. exported thro’ Virga yet he would never agree to this power. Should it take take place, it would destroy the last hope of an adoption of the plan.

Mr. Govr Morris. These local considerations ought not to impede the general interest. There is great weight in the argument, that the exporting States will tax the produce of their uncommercial neighbours. The power of regulating the trade between Pa & N. Jersey will never prevent the former from taxing the latter. Nor will such a tax force a direct exportation from N— Jersey— The advantages possessed by a large trading City, outweigh the disadvantage of a moderate duty; and will retain the trade in that channel— If no tax can be laid on exports, an embargo cannot be laid, though in time of war such a measure may be of critical importance—Tobacco, lumber, and live-stock are three objects belonging to different States, of which great advantage might be maed by a power to tax exports — To these may be added Ginseng and Masts for Ships by which a tax might be thrown on other nations. The idea of supplying the West Indies with lumber from Nova Scotia, is one of the many follies of lord Sheffield’s pamphlets. The State of the Country also, will change, and render duties on exports, as skins, beaver & other peculiar raw materials, politic in the view of encouraging American Manufactures.

Mr. Butler was strenuously opposed to a power over exports; as unjust and alarming to the staple States.

Edition: current; Page: [361]

Mr. Langdon suggested a prohibition on the States from taxing the produce of other States exported from their harbours.

Mr. Dickenson. The power of taxing exports may be inconvenient at present; but it must be of dangerous consequence to prohibit it with respect to all articles and for ever. He thought it would be better to except particular articles from the power.

Mr. Sherman— It is best to prohibit the National legislature in all cases. The States will never give up all power over trade. An enumeration of particular articles would be difficult invidious and improper.

Mr M〈adison〉 As we ought to be governed by national and permanent views, it is a sufficient argument for giving ye power over exports that a tax, tho’ it may not be expedient at present, may be so hereafter.16 A proper regulation of exports may & probably will be necessary hereafter, and for the same purposes as the regulation of — imports; viz, for revenue — domestic manufactures17 — and procuring equitable regulations from other nations. An Embargo may be of absolute necessity, and can alone be effectuated by the Genl. authority. The regulation of trade between State and State can not effect more than indirectly to hinder a State from taxing its own exports; by authorizing its Citizens to carry their commodities freely into a neighbouring State which might decline taxing exports in order to draw into its channel the trade of its neighbours — As to the fear of disproportionate burdens on the more exporting States, it might be remarked that it was agreed on all hands that the revenue wd. principally be drawn from trade, and as only a given revenue would be needed, it was not material whether all should be drawn wholly from imports — or half from those, and half from exports — The imports and exports must be pretty nearly equal in every State — and relatively the same among the different States.

Mr Elseworth did not conceive an embargo by the Congress interdicted by this section.

Edition: current; Page: [362]

Mr. McHenry conceived that power to be included in the power of war.

Mr. Wilson. Pennsylvania exports the produce of Maryd. N. Jersey, Delaware & will by & by when the River Delaware is opened, export for N— York. In favoring the general power over exports therefore, he opposed the particular interest of his State. He remarked that the power had been attacked by reasoning which could only have held good in case the Genl Govt. had been compelled, instead of authorized, to lay duties on exports. To deny this power is to take from the Common Govt. half the regulation of trade — It was his opinion that a power over exports might be more effectual than that over imports in obtaining beneficial treaties of commerce.

Mr. Gerry was strenuously opposed to the power over exports. It might be made use of to compel the States to comply with the will of the Genl Government, and to grant it any new powers which might be demanded — We have given it more power already than we know how will be exercised — It will enable the Genl Govt to oppress the States, as much as Ireland is oppressed by Great Britain.

Mr. Fitzimmons would be agst. a tax on exports to be laid immediately; but was for giving a power of laying the tax when a proper time may call for it — This would certainly be the case when America should become a manufacturing country — He illustrated his argument by the duties in G— Britain on wool &c.

Col. Mason — If he were for reducing the States to mere corporations as seemed to be the tendency of some arguments, he should be for subjecting their exports as well as imports to a power of general taxation — He went on a principle often advanced & in which he concurred, that “a majority when interested will oppress the minority”. This maxim had been verified by our own Legislature (of Virginia). If we compare the States in this point of view the 8 Northern States have an interest different from the five Southn. States, — and have in one branch of the legislature 36 votes agst 29. and in the other, in the proportion of 8 agst 5. The Southern Edition: current; Page: [363] States had therefore ground for their suspicions. The case of Exports was not the same with that of imports. The latter were the same throughout the States: the former very different. As to Tobacco other nations do raise it, and are capable of raising it as well as Virga. &c. The impolicy of taxing that article had been demonstrated by the experiment of Virginia —

Mr Clymer remarked that every State might reason with regard to its particular productions, in the same manner as the Southern States. The middle States may apprehend an oppression of their wheat flour, provisions, &c. and with more reason, as these articles were exposed to a competition in foreign markets not incident to Tobo. rice &c — They may apprehend also combinations agst. them between the Eastern & Southern States as much as the latter can apprehend them between the Eastern & middle — He moved as a qualification of the power of taxing Exports that it should be restrained to regulations of trade, 〈by inserting after the word “duty” Sect 4 art VII the words〉18 “for the purpose of revenue.”

Mr. M〈adison,〉 In order to require ⅔ of each House to tax exports — as a lesser evil than a total prohibition 〈moved to insert the words “unless by consent of two thirds of the Legislature”〉,20 Mr Wilson 2ds. and on this question, 〈it passed in the Negative.〉

Mr L— Martin, proposed to vary the sect: 4. art VII so as to allow a prohibition or tax on the importation of slaves.23 1. As five slaves are to be counted as 3 free men in the apportionment of Representatives; such a clause wd. leave an encouragement to this trafic. 2 slaves weakened one part of the Union which the other parts were bound to protect: the privilege of importing them was therefore unreasonable — 3. it was inconsistent with the principles of the revolution and dishonorable to the American character to have such a feature in the Constitution.

Mr Rutlidge did not see how the importation of slaves could be encouraged by this section. He was not apprehensive of insurrections and would readily exempt the other States from24 〈the obligation to protect the Southern against them.〉. — Religion & humanity had nothing to do with this question — Interest alone is the governing principle with Nations — The true question at present is whether the Southn. States shall or shall not be parties to the Union. If the Northern States consult their interest, they will not oppose the increase of Slaves which will increase the commodities of which they will become the carriers.

Mr. Elseworth was for leaving the clause as it stands. let every State import what it pleases. The morality or wisdom of slavery are considerations belonging to the States themselves — What enriches a part enriches the whole, and the States are the best judges of their particular interest. The old confederation had not meddled with this point, and he did not see any greater necessity for bringing it within the policy of the new one:

Mr Pinkney. South Carolina can never receive the plan if it prohibits the slave trade. In every proposed extension of the powers of Congress, that State has expressly & watchfully excepted that of meddling with the importation of negroes. Edition: current; Page: [365] If the States be all left at liberty on this subject, S. Carolina may perhaps by degrees do of herself what is wished, as Virginia & Maryland have already done.

The honorable Mr Rutledge, from the Committee to whom sundry propositions were referred on the 18 and 20th instant, informed the House that the Committee were prepared to report — he then read the report in his place — and the same, being delivered in at the Secretary’s table, was again read throughout, and is as follows

The Committee report that in their opinion the following additions should be made to the report now before the Convention vizt

at the end of the 1st clause of the 1st section of the 7 article add

“for payment of the debts and necessary expences of the United States — provided that no law for raising any branch Edition: current; Page: [367] of revenue, except what may be specially appropriated for the payment of interest on debts or loans shall continue in force for more than years”

at the end of the 2nd clause, 2 sect. 7 article add

“and with Indians, within the Limits of any State, not subject to the laws thereof”

at the end of the 16 clause of the 2 sect. 7 article add

“and to provide, as may become necessary, from time to time, for the well managing and securing the common property and general interests and welfare of the United States in such manner as shall not interfere with the Governments of individual States in matters which respect only their internal Police, or for which their individual authorities may be competent”

at the end of the 1st section 10 article add

“he shall be of the age of thirty five years, and a Citizen of the United States, and shall have been an Inhabitant thereof for Twenty one years”

after the 2nd section of the 10th article insert the following as a 3rd section.

“The President of the United States shall have a Privy-Council which shall consist of the President of the Senate, the Speaker of the House of representatives, the Chief-Justice of the Supreme-Court, and the principal Officer in the respective departments of foreign affairs, domestic-affairs, War, Marine, and Finance, as such departments of office shall from time to time be established — whose duty it shall be to advise him in matters respecting the execution of his Office, which he shall think proper to lay before them: But their advice shall not conclude him, nor affect his responsibility for the measures which he shall adopt”

at the end of the 2nd section of the 11 article add

“The Judges of the Supreme Court shall be triable by the Senate, on impeachment by the House of representatives” Between the 4 & 5 lines of the 3rd section of the 11 article, after the word “controversies” — insert

“between the United States and an individual State, or the United States and an individual person”

Edition: current; Page: [368]

It was moved and seconded to rescind the order of the House respecting the hours of meeting and adjournment

which passed in the negative [Ayes — 4; noes — 7.]

It was moved and seconded to insert the following clause after the 2nd section of the 7 article

It was moved and seconded to strike the following words out of the second clause of the report

“and the authority of training the militia according to the discipline prescribed by the United States”

Before the question was taken on the last motion

The House adjourned

Edition: current; Page: [369]

DETAIL OF AYES AND NOES

New Hampshire

Massachusetts

Rhode Island

Connecticut

New York

New Jersey

Pennsylvania

Delaware

Maryland

Virginia

No Carolina

So Carolina

Georgia

Questions

ayes

noes

divided

[337]

no

aye

aye

no

no

aye

aye

aye

aye

aye

To commit ye remaing clauses of the 4th & the 5 sect 7 article

7

3

[338]

aye

aye

no

no

aye

aye

aye

aye

aye

aye

aye

To commit the 6th section 7 article

9

2

[339]

no

aye

no

no

aye

aye

aye

no

no

no

no

To rescind the order of the House respecting the hours of meeting and adjournment

4

7

[340]

aye

aye

no

no

no

aye

aye

aye

dd

aye

aye

To agree to the clause after the 2nd sect. 7 article

7

3

1

[341]

no

aye

no

aye

no

no

aye

aye

aye

no

aye

To postpone the considn of the report of the Committee of five

6

5

[342]

aye

aye

aye

aye

aye

aye

aye

aye

aye

aye

aye

To agree to Mr Morris’s amendment of the 1st clause of the report of the Committee of eleven

11

MADISON Wednesday August 22. in Convention

Art. VII sect 4. resumed.2 Mr. Sherman was for leaving the clause as it stands. He disapproved of the slave trade: yet as the States were now possessed of the right to import slaves, as the public good did not require it to be taken from them, & as it was expedient to have as few objections as possible to the proposed scheme of Government, he thought it best to leave the matter as we find it. He observed that the abolition of slavery seemed to be going on in the U. S. Edition: current; Page: [370] & that the good sense of the several States would probably by degrees compleat it. He urged on the Convention the necessity of despatch〈ing its business.〉

Col. Mason. This infernal trafic originated in the avarice of British Merchants. The British Govt. constantly checked the attempts of Virginia to put a stop to it. The present question concerns not the importing States alone but the whole Union. The evil of having slaves was experienced during the late war. Had slaves been treated as they might have been by the Enemy, they would have proved dangerous instruments in their hands. But their folly dealt by the slaves, as it did by the Tories. He mentioned the dangerous insurrections of the slaves in Greece and Sicily; and the instructions given by Cromwell to the Commissioners sent to Virginia, to arm the servants & slaves, in case other means of obtaining its submission should fail. Maryland & Virginia he said had already prohibited the importation of slaves expressly. N. Carolina had done the same in substance. All this would be in vain if S. Carolina & Georgia be at liberty to import. The Western people are already calling out for slaves for their new lands; and will fill that Country with slaves if they can be got thro’ S. Carolina & Georgia. Slavery discourages arts & manufactures. The poor despise labor when performed by slaves. They prevent the immigration of Whites, who really enrich & strengthen a Country. They produce the most pernicious effect on manners. Every master of slaves is born a petty tyrant. They bring the judgment of heaven on a Country. As nations can not be rewarded or punished in the next world they must be in this. By an inevitable chain of causes & effects providence punishes national sins, by national calamities. He lamented that some of our Eastern brethren had from a lust of gain embarked in this nefarious traffic. As to the States being in possession of the Right to import, this was the case with many other rights, now to be properly given up. He held it essential in every point of view, that the Genl. Govt. should have power to prevent the increase of slavery.

Mr. Elsworth. As he had never owned a slave could not Edition: current; Page: [371] judge of the effects of slavery on character. He said however that if it was to be considered in a moral light we ought to go farther and free those already in the Country. — As slaves also multiply so fast in Virginia & Maryland that it is cheaper to raise than import them, whilst in the sickly rice swamps foreign supplies are necessary, if we go no farther than is urged, we shall be unjust towards S. Carolina & Georgia — Let us not intermeddle. As population increases; poor laborers will be so plenty as to render slaves useless. Slavery in time will not be a speck in our Country. Provision is already made in Connecticut for abolishing it. And the abolition has already taken place in Massachusetts. As to the danger of insurrections from foreign influence, that will become a motive to kind treatment of the slaves.

Mr. Pinkney — If slavery be wrong, it is justified by the example of all the world. He cited the case of Greece Rome & other antient States; the sanction given by France England, Holland & other modern States. In all ages one half of mankind have been slaves. If the S. States were let alone they will probably of themselves stop importations. He wd. himself as a Citizen of S. Carolina vote for it. An attempt to take away the right as proposed will produce serious objections to the Constitution which he wished to see adopted.

General Pinkney declared it to be his firm opinion that if himself & all his colleagues were to sign the Constitution & use their personal influence, it would be of no avail towards obtaining the assent of their Constituents. S. Carolina & Georgia cannot do without slaves. As to Virginia she will gain by stopping the importations. Her slaves will rise in value, & she has more than she wants. It would be unequal to require S. C. & Georgia to confederate on such unequal terms. He said the Royal assent before the Revolution had never been refused to S. Carolina as to Virginia. He contended that the importation of slaves would be for the interest of the whole Union. The more slaves, the more produce to employ the carrying trade; The more consumption also, and the more of this, the more of revenue for the common treasury. He admitted it to be reasonable that slaves should be dutied Edition: current; Page: [372] like other imports, but should consider a rejection of the clause as an exclusion of S. Carola from the Union.

Mr. Baldwin had conceived national objects alone to be before the Convention, not such as like the present were of a local nature. Georgia was decided on this point. That State has always hitherto supposed a Genl Governmt to be the pursuit of the central States who wished to have a vortex for every thing — that her distance would preclude her from equal advantage — & that she could not prudently purchase it by yielding national powers. From this it might be understood in what light she would view an attempt to abridge one of her favorite prerogatives. If left to herself, she may probably put a stop to the evil. As one ground for this conjecture, he took notice of the sect of which he said was a respectable class of people, who carryed their ethics beyond the mere equality of men, extending their humanity to the claims of the whole animal creation.

Mr. Wilson observed that if S. C. & Georgia were themselves disposed to get rid of the importation of slaves in a short time as had been suggested, they would never refuse to Unite because the importation might be prohibited. As the Section now stands all articles imported are to be taxed. Slaves alone are exempt. This is in fact a bounty on that article.

Mr. Gerry thought we had nothing to do with the conduct of the States as to Slaves, but ought to be careful not to give any sanction to it.

Mr. Dickenson considered it as inadmissible on every principle of honor & safety that the importation of slaves should be authorized to the States by the Constitution. The true question was whether the national happiness would be promoted or impeded by the importation, and this question ought to be left to the National Govt. not to the States particularly interested. If Engd. & France permit slavery, slaves are at the same time excluded from both those Kingdoms. Greece and Rome were made unhappy by their slaves. He could not believe that the Southn. States would refuse to confederate on the account apprehended; especially as the power was Edition: current; Page: [373] not likely to be immediately exercised by the Genl. Government.

Mr Williamson stated the law of N. Carolina on the subject, to wit that it did not directly prohibit the importation of slaves. It imposed a duty of £5. on each slave imported from Africa. £10. on each from elsewhere, & £50 on each from a State licensing manumission. He thought the S. States could not be members of the Union if the clause should be rejected, and that it was wrong to force any thing down, not absolutely necessary, and which any State must disagree to.

Mr. King thought the subject should be considered in a political light only. If two States will not agree to the Constitution as stated on one side, he could affirm with equal belief on the other, that great & equal opposition would be experienced from the other States. He remarked on the exemption of slaves from duty whilst every other import was subjected to it, as an inequality that could not fail to strike the commercial sagacity of the Northn. & middle States.

Mr. Langdon was strenuous for giving the power to the Genl. Govt. He cd. not with a good conscience leave it with the States who could then go on with the traffic, without being restrained by the opinions here given that they will themselves cease to import slaves.

Genl. Pinkney thought himself bound to declare candidly that he did not think S. Carolina would stop her importations of slaves in any short time, but only stop them occasionally as she now does. He moved to commit the clause that slaves might be made liable to an equal tax with other imports which he he thought right & wch. wd. remove one difficulty that had been started.

Mr. Rutlidge. If the Convention thinks that N. C; S. C. & Georgia will ever agree to the plan, unless their right to import slaves be untouched, the expectation is vain. The people of those States will never be such fools as to give up so important an interest. He was strenuous agst. striking out the Section, and seconded the motion of Genl. Pinkney for a commitment.

Edition: current; Page: [374]

Mr Govr. Morris wished the whole subject to be committed including the clauses relating to taxes on exports & to a navigation act. These things may form a bargain among the Northern & Southern States.

Mr. Butler declared that he never would agree to the power of taxing exports.

Mr. Sherman said it was better to let the S. States import slaves than to part with them, if they made that a sine qua non. He was opposed to a tax on slaves imported as making the matter worse, because it implied they were property. He acknowledged that if the power of prohibiting the importation should be given to the Genl. Government that it would be exercised. He thought it would be its duty to exercise the power.

Mr. Read was for the commitment provided the clause concerning taxes on exports should also be committed.

Mr. Sherman observed that that clause had been agreed to & therefore could not committed.

Mr. Randolph was for committing in order that some middle ground might, if possible, be found. He could never agree to the clause as it stands. He wd. sooner risk the constitution — He dwelt on the dilemma to which the Convention was exposed. By agreeing to the clause, it would revolt the Quakers, the Methodists, and many others in the States having no slaves. On the other hand, two States might be lost to the Union. Let us then, he said, try the chance of a commitment.

Mr. Pinkney & Mr. Langdon moved to commit sect. 6. as to navigation act 〈by two thirds of each House.〉

Mr. Gorham did not see the propriety of it. Is it meant to require a greater proportion of votes? He desired it to be remembered that the Eastern States had no motive to Union but a commercial one. They were able to protect themselves. They were not afraid of external danger, and did not need the aid of the Southn. States.

Edition: current; Page: [375]

Mr. Wilson wished for a commitment in order to reduce the proportion of votes required.

Mr. Elsworth was for taking the plan as it is. This widening of opinions has a threatening aspect. If we do not agree on this middle & moderate ground he was afraid we should lose two States, with such others as may be disposed to stand aloof, should fly into a variety of shapes & directions, and most probably into several confederations and not without bloodshed.

Mr. Gerry urged the necessity of this prohibition, which he said was greater in the National than the State Legislature, because the number of members in the former being fewer, they were on that account the more to be feared.

Edition: current; Page: [376]

Mr. Govr. Morris thought the precaution as to ex post facto laws unnecessary; but essential as to bills of attainder

Mr Elseworth contended that there was no lawyer, no civilian who would not say that ex post facto laws were void of themselves. It cannot then be necessary to prohibit them.

Mr. Wilson was against inserting anything in the Constitution as to ex post facto laws. It will bring reflexions on the Constitution — and proclaim that we are ignorant of the first principles of Legislation, or are constituting a Government which will be so.

The question being divided, The first part of the motion relating to bills of attainder was agreed to nem. contradicente.

On the second part relating to ex post facto laws —

Mr Carrol remarked that experience overruled all other calculations. It had proved that in whatever light they might be viewed by civilians or others, the State Legislatures had passed them, and they had taken effect.

Mr. Wilson. If these prohibitions in the State Constitutions have no effect, it will be useless to insert them in this Constitution. Besides, both sides will agree to the principle & will differ as to its application.

Mr. Williamson. Such a prohibitory clause is in the Constitution of N. Carolina, and tho it has been violated, it has done good there & may do good here, because the Judges can take hold of it

Docr. Johnson thought the clause unnecessary, and implying an improper suspicion of the National Legislature.

The report of the committee of 5. made by Mr. Rutlidge, was taken up & then postponed that each member Might furnish himself with a copy.

The Report of the Committee of Eleven delivered in & entered on the Journal of the 21st. inst. was then taken up. Edition: current; Page: [377] and the first clause containing the words “The Legislature of the U. S. shall have power to fulfil the engagements which have been entered into by Congress” being under consideration,6

Mr. Elsworth argued that they were unnecessary. The U— S— heretofore entered into Engagements by Congs who were their Agents. They will hereafter be bound to fulfil them by their new agents.

Mr Randolph thought such a provision necessary; for though the U. States will be bound, the new Govt will have no authority in the case unless it be given to them.

Mr. Madison thought it necessary to give the authority in order to prevent misconstruction. He mentioned the attempts made by the Debtors to British subjects to shew that contracts under the old Government, were dissolved by the Revolution which destroyed the political identity of the Society.

Mr Gerry thought it essential that some explicit provision should be made on this subject, so that no pretext might remain for getting rid of the public engagements.

Mr. Govr. Morris moved by way of amendment to substitute — “The Legislature shall discharge the debts & fulfil the engagements 〈of the U. States〉”.

It was moved to vary the amendment by striking out “discharge the debts” & to insert “liquidate the claims”, which being negatived,

The amendment moved by Mr. Govr. Morris was agreed to all the States being in the affirmative.

It was moved & 2ded. to strike the following words — out of the 2d. clause of the report “and the authority of training the Militia according to the discipline prescribed by the U— S.” 〈Before a question was taken〉7

McHENRYAugust 22.

The 4 sect promitting the importation of Slaves gave rise to much desultory debate.

Every 5 slaves counted in representation as one elector without being equal in point of strength to one white inhabitant.

This gave the slave States an advantage in representation over the others.

The slaves were moreover exempt from duty on importation.

They served to render the representation from such States aristocratical.

It was replied — That the population or increase of slaves in Virginia exceeded their calls for their services — That a prohibition of Slaves into S. Carolina Georgia etc — would be a monopoly in their favor. These States could not do without Slaves — Virginia etc would make their own terms for such as they might sell.

Such was the situation of the country that it could not exist without slaves — That they could confederate on no other condition.

They had enjoyed the right of importing slaves when colonies.

They enjoyed as States under the confederation — And if they could not enjoy it under the proposed government, they could not associate or make a part of it.

Several additions were reported by the Committee.

Mr. Martin shewed us some restrictory clauses drawn up for the VII article respecting commerce — which we agreed to bring forward. —

Moved that the legislature should pass no ex post facto laws or bills of attainder.

G. Morris Willson Dr. Johnson etc thought the first an unnecessary guard as the principles of justice law et[c] were Edition: current; Page: [379] a perpetual bar to such — To say that the legis. shall not pass an ex post facto law is the same as to declare they shall not do a thing contrary to common sense — that they shall not cause that to be a crime which is no crime —

Carried in the affirmative.

Edition: current; Page: [380]

THURSDAY, AUGUST 23, 1787.

JOURNAL Thursday August 23rd 1787.

It was moved and seconded to postpone the consideration of the second clause of the report of the Committee of eleven in order to take up the following

“To establish an uniform and general system of discipline for the militia of these States, and to make laws for organizing, arming, disciplining and governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the Officers and all authority over the militia not herein given to the general Government”

On the question to postpone

it passed in the negative [Ayes — 3; noes — 8.]

It was moved and seconded to postpone the consideration of the second clause of the report of the Committee of eleven in order to take up the following

“To establish an uniformity of arms, exercise, and organization for the militia — and to provide for the government of them when called into the service of the United States”

It was moved and seconded to agree to the 7 section of the 7 article, as reported,

which passed in the affirmative [Ayes — 11; noes — 0.]

It was moved and seconded to insert the following clause after the 7 section of the 7 article.

“No person holding any office of profit or trust under the United States, shall without the consent of the Legislature accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign State”

which passed in the affirmative

It was moved and seconded to amend the 8th article to read as follows

“This Constitution and the Laws of the United States made in pursuance thereof, and all treaties made under the authority of the United-States, shall be the supreme law of Edition: current; Page: [382] the several States, and of their Citizens and inhabitants; and the Judges in the several States shall be bound thereby in their decisions; any thing in the constitutions or laws of the several States to the contrary notwithstanding”

which passed in the affirmative

On the question to agree to the 8 article as amended

it passed in the affirmative

It was moved and seconded to strike the following words out of the 18 clause of the 1st section 7 article

“enforce treaties”

which passed in the affirmative

It was moved and seconded to alter the first part of the 18 clause of the 1st section, 7 article to read

“To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions”

which passed in the affirmative

On the question to agree to the 18th clause of the 1st section, 7 article, as amended